“10. I passionately believe in the trade union cause and hope to do so for the remainder of my career. I consider myself an activist and have championed Black representation within the education sector and have worked tirelessly to shape the future for Black and all educators. This is something which I am passionate about and has been at the focus and drive of my work within the Union. 11. During my time in the Defendant union, I have held various roles including National Executive seat and on committees including Member Defence and Equalities. I have been heavily and proactively involved in the Black Organising Forum and various positions at District and Regional levels including President, and positions involving equality, international solidarity, planning and delivering training. I have previously spoken on the national media on behalf of the Union as well and a representative at International events.”
“more focused on younger members and does not like internal debate and discussion which does not mirror its new image and leadership. My experience appears to be part of an agenda to manage out older more vocal members.”
“there is…a culture in the Defendant union which is now against challenge in the traditional sense. The rough and tumble of debate, lobbying and canvasing support is now labelled as inappropriate; or worse by the leadership of the Defendant.”
“22. Professional conduct and discipline 22.1 There shall be a code of Professional Conduct established by the Joint Executive Council and included as Appendix I to these rules. 22.2 Any questions as to the professional conduct of any member whether it arises on the personal application of any member or otherwise shall stand referred to the National Disciplinary Committee and be dealt with in accordance with the procedure produced by the Executive in accordance with Appendix A of these rules. ….. 22.5 All questions relating to the discipline of members and any appeals on the question of eligibility for membership shall be dealt with in accordance with the provisions of Appendix A of these rules.”
“(d) The publication of the result of the hearing is a derogation from the confidentiality of the proceedings and is at the Executive’s sole discretion (Rule 58(a) (Procedure Rules).”
“There is no restriction on the Defendant itself being represented by a lawyer on appeal in its capacity as respondent.”
“The Officers of the Union have no legal representation or indeed advice from the legal staff of the Union in relation to complaints they bring against members.”
“[18] A simple distillation, so far as material for present purposes, can be set out uncontroversially as follows: (1) When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. It does so by focussing on the meaning of the relevant words in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the contract, (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions; (2) The reliance placed in some cases on commercial common sense and surrounding circumstances should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision; (3) When it comes to considering the centrally relevant words to be interpreted, the clearer the natural meaning, the more difficult it is to justify departing from it. The less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning; (4) Commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made; (5) While commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party; (6) When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made, and which were known or reasonably available to both parties. [19] Thus the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. This is not a literalist exercise; the court must consider the contract as a whole and, depending on the nature, formality, and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. The interpretative exercise is a unitary one involving an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences investigated.”
“RELEVANT LEGAL PRINCIPLES [34] There is no dispute between the parties as to the relevant legal principles, which can be derived from well-established authority. It is common ground that those principles were helpfully summarised by HHJ Jeffrey Burke QC (acting as a Certification Officer) in Coyne v Unite the Union (D/2/18–19), a decision of4 May 2018 , at paras 24–30: ‘[24] The starting point of any examination of authority in this area is to be found in the speech of Lord Wilberforce, giving the joint opinion of the House of Lords inHeatons Transport (St Helens) Limited v Transport General Workers Union [[1972] IRLR 25 ,][1972] ICR 308 . As is common ground between the present parties, each person who becomes a member of a trade union enters into an agreement with the union the basic terms of which are to be found in the union’s rules. At [[1972] ICR 308 ,] pages 393G to 394C of his speech [[1972] IRLR 25 , p 28], Lord Wilberforce said:- “The basic terms of that agreement are to be found in the union’s rule book. But trade union rule books are not drafted by parliamentary draftsmen. Courts of law must resist the temptation to construe them as if they were; for that is not how they would be understood by the members who are the parties to the agreement of which the terms, or some of them, are set out in the rule book, nor how they would be, and in fact were, understood by the experienced members of the court. Furthermore, it is not to be assumed, as in the case of a commercial contract which has been reduced into writing, that all the terms of the agreement are to be found in the rule book alone: particularly as respects the discretion conferred by the members upon committees or officials of the union as to the way in which they may act on the union’s behalf. What the members understand as to the characteristics of the agreement into which they enter by joining a union is well stated in the section of the TUC Handbook on the Industrial Relations Act which gives advice about the content and operation of unions’ rules. Paragraph 99 reads as follows: ‘Trade union government does not however rely solely on what is written down in the rule book. It also depends upon custom and practice, by procedures which have developed over the years and which, although well understood by those who operate them, are not formally set out in the rules. Custom and practice may operate either by modifying a union’s rules as they operate in practice, or by compensating for the absence of formal rules. Furthermore, the procedures which custom and practice lays down very often vary from workplace to workplace within the same industry, and even within different branches of the same union.’” [25] In Taylor v NUM (Derbyshire Area)[1985] IRLR 99 , Vinelott J, when considering a question of construction of the rules of the respondent union, described that passage as containing the “correct approach to construction of the rules as a union”; see paragraph 33 of his judgment in the Chancery Division. He referred to the principle there set out as having been applied by Lord Diplock in Porter v NUJ[1980] IRLR 404 and by Lord Dilhorne in British Actors’ Equity Association v Goring[1978] ICR 791 . Lord Diplock, in Porter, said:- “I turn then to the interpretation of the relevant rules, bearing in mind that their purpose is to inform the members of the NUJ of what rights they acquire and obligations they assume vis-à-vis the union and their fellow members, by becoming and remaining members of it. The readership to which the rules are addressed consists of ordinary working journalists, not judges or lawyers versed in the semantic technicalities of statutory draftsmanship.” [26] In Jacques v AUEW[1986] ICR 683 ,Warner J had to resolve an issue as to the meaning of the rules of the defendant union. … [27]… The judge, at page 692A to B said:- “There are, of course, in those dicta differences of emphasis and of formulation, but not, I think, differences of principle. It is to be observed that Lord Pearson and Lord Salmon agreed both with what was said by Lord Wilberforce in the Heatons Transport case and with what was said by Viscount Dilhorne in British Actors’ Equity Association v Goring[1978] ICR 791 . The effect of the authorities may I think be summarised by saying that the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the court’s view they must have been intended to mean, bearing in mind their authority, their purpose, and the readership to which they are addressed.” … [30] In argument both Mr Millar and Mr Segal agreed, by way of summary of the authorities, that the principle can be expressed as “what would the reasonable trade union member understand the words to mean”.’ [35] Our attention was drawn to the decision of this Court in Evangelou and others v McNicol (sued as a representative of all members of the Labour Party except the claimants)[2016] EWCA Civ 817 ,[2016] All ER (D) 50 (Aug). Although that case did not concern a trade union, as it concerned the Labour Party, the judgment of Beatson LJ helpfully summarised the relevant principles at paras [19]–[23]: [19] The nature of the relationship between an unincorporated association and its individual members is governed by the law of contract:- (a) The contract is found in the rules to which each member adheres when he or she joins the association: see Choudhry v Tresiman[2003] EWHC 1203 (Comm) [, [2003] 22 LS Gaz R 29] at [38] per Stanley Burnton J. (b) A person who joins an unincorporated association thus does so on the basis that he or she will be bound by its constitution and rules, if accessible, whether or not he or she has seen them and irrespective of whether he or she is actually aware of particular provisions: John v Rees[1970] 1 Ch 345 at 388D–E; Raggett v Musgrave (1827) 2 C & P 556 at 557. (c) The constitution and rules of an unincorporated association can only be altered in accordance with the constitution and rules themselves: Dawkins v Antrobus(1881) 17 Ch D 615 at 621, Harington v Sendall[1903] 1 Ch 921 at 926 and Re Tobacco Trade Benevolent Society (Sinclair v Finlay)[1958] 3 All ER 353 at 355B–C. [20] Because the nature of the relationship between an unincorporated association and its individual members is governed by the law of contract the proper approach to the interpretation of the constitution and rules is governed by the legal principles as to the interpretation of contracts, and is a matter of law for the court. The approach is thus that set out in cases such as Chartbrook Ltd v Persimmon Homes Ltd[2009] UKHL 38 ,[2009] 1 AC 1101 at [14], Arnold v Britton[2015] UKSC 36 ,[2015] AC 1619 at [15] and [18], and Marks and Spencer PLC v BNP Paribas Security Services Trust Co (Jersey) Ltd[2015] UKSC 72 ,[2015] 3 WLR 1843 . The intentions of the parties to a contract will be ascertained by reference to what a reasonable person having all the background which would have been available to the parties would have understood the language in the contract to mean, and it does so by focusing on the meaning of the words in the contract in their documentary and factual context. [21] The meaning has to be assessed in the light of the natural and ordinary meaning of the words, any other relevant provisions of the contract, the overall purpose of the clause in the contract and the facts and circumstances known or assumed by the parties. In this context, this means the members of the unincorporated association, the Labour Party. In Foster v McNicol Foskett J, relying on Jacques v AUEW[1986] ICR 683 at 692, stated that the court can take into account “the readership to which” the rules of an unincorporated association are addressed when interpreting them.” [36] It will be apparent therefore that: (1) A trade union’s rulebook is in law a contract between all of its members from time to time. (2) As such, it must be interpreted in accordance with the principles which apply generally to the interpretation of contracts. (3) Nevertheless, the context is important. Recent authorities, which have tended to concern the interpretation of commercial contracts, have not cast doubt on the approach to the interpretation of a trade union’s rulebook, which was set out in, for example, Heatons Transport (St Helens) Ltd v Transport General Workers Union[1972] IRLR 25 ,[1972] ICR 308 . (4) It is also important to recall that what falls to be construed in this context is in substance the constitution of a trade union. Although in law its status is that of a multilateral contract, it is the document which sets out the powers and duties of a trade union.”
“Accordingly (apart from a subsidiary question as to the jurisdiction of the courts in Ceylon to grant declaratory relief in such a case), the present appeal resolves itself into the question whether this inquiry was conducted with due regard to the rights accorded by the principles of natural justice to the plaintiff as the person against whom it was directed. These rights have been defined in varying language in a large number of cases covering a wide field. Their Lordships do not propose to review these authorities at length, but would observe that the question whether the requirements of natural justice have been met by the procedure adopted in any given case must depend to a great extent on the facts and the circumstances of the case in point. As Tucker L.J. D said in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118: ' There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.'”
“In the nature of things, it is difficult to imagine that the rules of natural justice would ever require legal representation before the governor. But though the rules of natural justice may require legal representation before a board of visitors, I can see no basis for Mr. Hill's submission that they should do so in every case as of right. Everything must depend on the circumstances of the particular case, as is amply demonstrated by the circumstances so carefully listed by Webster J. in Reg. v. Secretary of State for the Home Department, Ex parte Tarrant [1985] Q.B. 251 as matters which boards of visitors should take into account. But it is easy to envisage circumstances in which the rules of natural justice do not call for representation, even though the disciplinary charge relates to a matter which constitutes in law a crime, as may well happen in the case of a simple assault where no question of law arises, and where the prisoner charged is capable of presenting his own case. To hold otherwise would result in wholly unnecessary delays in many cases, to the detriment of all concerned including the prisoner charged, and to wholly unnecessary waste of time and money, contrary to the public interest. Indeed, to hold otherwise would not only cause injustice to prisoners; it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so, for the punishments liable to be imposed do not depend upon any such distinction.”
“[58] In R v Board of Visitors of HMP The Maze ex p Hone[1988] AC 379 it was held that whether the common law gave rise to a right to legal representation would depend upon the circumstances. There was no right to legal representation in every case (p392D). [59] In ex p Hone the House of Lords cited with approval the judgment of Webster J in R v Secretary of State for the Home Department ex p Tarrant[1985] QB 251 . In that judgment Webster J identified factors to be considered when deciding whether to permit legal representation in the context of prison disciplinary proceedings: i) The seriousness of the charge. ii) Whether any points of law are likely to arise. iii) The capacity of the prisoner to understand the case against him. iv) Procedural difficulties. v) The need to avoid delay. vi) The need for fairness between the prisoner and those making allegations. The Court proceeded to find that it would be unreasonable to deny representation in the context of particularly serious charges (p287). [60] Consistent with ex p Tarrant, the courts have continued to recognised that legal representation may be required in particular cases. For example, in R (Dr S) v Knowsley NHS Primary Care Trust[2006] EWHC 26 (Admin) Toulson J held that: “It may be that in many cases legal representation would be unnecessary, but the question in each case must be whether the doctor can reasonably be expected to represent himself or whether legal representation is necessary in order to enable him to be able properly to present his case. I do not see that this can be a matter of presumption but must depend on the circumstances, including particularly the complexity of the allegations and the evidence. [101] …. [84] It appears to me that at times in this case the arguments have failed to distinguish between the issue of whether there was an automatic right to legal representation because of the nature of the proceedings and whether there was a right to legal representation in the specific circumstances of this case. [85] In general courts have been reluctant to find an entitlement to legal representations in broad classes of cases. So, for example, it has been held that there is no right to representation in all prison disciplinary cases (ex p Hone). As a consequence, I have no doubt that there was no right to representation simply because these were disciplinary proceedings. [86] However, it appears to me to be clear that in principle there can be individual cases where fairness requires legal representation. That was recognised in ex p Hone. The conclusion in ex p Hone appears to me to be consistent with the approach to procedural fairness adopted in Osborn. That demonstrates that procedural fairness is a flexible concept that takes account of matters such as the sense of injustice that a person will feel if an unfair procedure is adopted. None of the authorities relied upon by the Defendant appear to me to undermine that conclusion. In particular, in G the manner in which the case was argued meant that the Supreme Court’s finding that article 6 was not engaged was determinative of the claim to be entitled to legal representation. As Laws LJ noted, the courts were not ruling on the common law and Laws LJ left open the possibility that the common law may entitle a person to legal representation. The remarks of Lord Dyson in G when he noted that he would have found a right to legal representation if article 6 applied demonstrates the importance of considering the particular circumstances of a case when a claim is made for legal representation. [87] In light of the matters above, it appears to me that the Defendant misinterpreted its contractual obligations. Although both the 2018 and 2019 Regulations appear to provide for a student to be accompanied by someone rather than represented by them, those provisions do not exclude the need to ensure “natural justice” and so need to be read in light of the overriding duty to ensure “natural justice”
“Similalrly, the right to join a union “for the protection of his interests” cannot be interpreted as conferring a general right to join the union of one’s choice irrespective of the rules of the union: in the exercise of their rights under Article 11(1) unions must be free to decide, in accordance with union rules, questions concerning admission to and expulsion from the union”
“[19] Fourth, there is a public interest in allowing internal processes to run their course and courts should be slow to interfere if disputed issues can be sorted out and resolved within the framework of the internal procedure itself. See for example, Makhdum[2012] EWHC 4015 per Beatson J. at paragraph 51 where the judge indicated that it would in effect require serious irregularities before the court would consider interfering. He also intimated (see paragraph 52) that where the parties have agreed upon a process the court should prima facie respect the contractual intention of the parties and allow the process to occur. Similar observations were made by Mann J. in Hendy v MOJ[2014] EWHC 2539 at paragraph 49 and see also Sarker[2015] EWHC 165 to similar effect.”