Choudhry & Ors v Treisman [2003] EWHC 1203 (Comm)

Case No HC03C01115

[2003] EWHC 1203 (Comm)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice

Date Monday, 31 March 2003

Strand

London WC2

B E F O R E:

MR JUSTICE STANLEY BURNTON

CHOUDHRY & OTHERS

(CLAIMANT)

-v-

TREISMAN

(DEFENDANT)

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MR PHILIP COPPEL (MS SARAH JANE DAVIES for judgment)(instructed by Freeth Cartwright) appeared on behalf of the CLAIMANT

MR NIGEL GIFFIN (MR PETER OLDHAM for judgment)(instructed by Thompsons) appeared on behalf of the DEFENDANT

Between

Choudhry & OrsClaimant

TreismanDefendant

J U D G M E N

[1]The Labour Party rule book contains detailed provisions for the selection by democratic process of the party's candidates for elected public office, and in particular the selection of candidates to stand in local government elections.

[2]During 2002 each of the six claimants was selected by that process to stand as a Party candidate in one of four wards, namely, the Berridge, Bridge, Lea Valley and Dale wards in Nottingham City. However, the Labour Party has rejected the selection process which led to the nomination of the claimants on the ground that it was unsound. The process by which it arrived at that conclusion and what is meant by it are referred to later in this judgment.

[3]The Party wishes to impose candidates to stand as the Party candidates for election in those wards in place of those selected by the prescribed process. The party's decision was notified to the claimants by letter dated 3 March 2003. The local government elections will take place on 1 May 2003. Nominations must be submitted by noon tomorrow, 1 April 2003.

[4]The Labour Party is, of course, a registered Party within the meaning of the Political Parties, Elections and Referendums Act 2000. Subsection 6 of section 22 of that Act provides that a person stands for election in the name of a registered Party if his nomination paper includes a description authorised by certificate issued by or on behalf of the registered nominating officer of the Party. The Party has refused to provide such certificates in respect of the claimants.

[5]These proceedings were commenced on 26 March 2003. The defendant is the General Secretary of the Labour Party and is sued as representing the Party. The claimants seek declarations that they are the lawfully nominated candidates for the Party for the wards for which they were selected as candidates in the forthcoming local government elections, and injunctions requiring the defendant to nominate them as Labour Party candidates for those elections and preventing the defendant from submitting nomination papers for any other persons in their place.

[6]On an application made by the claimants on 26 March 2003 in the absence of the defendant, Mr Justice Lloyd ordered that the claimants' application for interim relief in terms of those injunctions should be heard on Friday 28 March 2003 and it was so heard by me.

[7]Given that the claimants' evidence was not served until 25 and 26 March, and then in draft form without exhibits, it is a tribute to the defendant's legal team that their evidence was served in time for the hearing. I must also express my appreciation of the full skeleton and oral arguments of both parties. The facts

[8]During the summer of 2002 allegations were made about the conduct of Party meetings in Nottingham relating to the selection of the local government candidates for the forthcoming local government elections. They were investigated and rejected. However, the allegations persisted, and in the period between November 2002 and January 2003 very serious allegations were made in relation to the selection process and membership irregularities affecting six wards in Nottingham, including the four wards for which the claimants had been selected.

[9]A report was prepared by Fiona Twycross, the regional organiser in the East Midlands Labour Party, for the National Executive Committee disputes panel. It stated:

"The selection process in Nottingham city has been compromised by what the East Midlands regional office believes to be widespread membership abuse in parts of the city, especially Nottingham East and parts of Nottingham South. There is one member, who is allegedly the main organiser (who is named) who runs or is connected to a number of projects in the city which benefit from substantial public funding which have been subject to investigation by the Fraud Squad, although no prosecution has been made. The office has received specific allegations and complaints in respect of four wards, Arboretum, Berridge, Dale and Lea Valley. A number of witnesses have come forward to back up the allegations. "

Alleged irregularities include wide scale purchase of membership to influence the result of local government selections. In order to avoid detection, membership has allegedly been paid by a variety of people including by employees for their family members and other non-related people with petty cash from a college of which (the person named) is chief executive and using a combination of personal cheques and postal orders. Members would then be 'lapsed' if they failed to toe the faction's line. "The running of alternative panel interviews in which prospective local government candidates are expected to pledge loyalty to his group or risk not being selected in the ward of their choice, the handing out of membership cards in advance of short-listing and selection meetings to people prepared to vote as directed by his faction, holding pre-meetings with paper members in order to make sure they vote the right way, arranging impersonation and short-listing and selection meetings when members cannot always go in person, arranging for people who no longer live in the relevant wards to retain electoral registration in other wards and also to effect short-listing at selection meetings."

[10]The report continues:

"Examination of the membership lists revealed relatively high payment by postal order and by cheque or cash in some wards. The East Midlands regional Labour Party would like the NEC to take action in this matter and following further investigation by the regional board if membership abuse it found to have taken place would request disciplinary action be taken against the person named. We would further request that should the regional board find evidence of membership abuse the selections in the wards to which specific complaints relate would need to be ruled unsound and the regional boards be allowed to impose candidates in the wards concerned. In such circumstances we do not believe it is possible to guarantee the rerunning of the normal selections given the extent of the alleged membership abuse."

The report concludes with a recommendation that:

"The report by the regional office be endorsed and a member of the disputes panel be designated to oversee the investigation by the regional board and should it be required to authorise any subsequent imposition of candidates for the local elections on 1 May."

[11]The National Executive Committee, or NEC, is described in the defendant's skeleton argument as:

"The administrative authority of the Party whose role inter alia is to uphold and enforce the constitution and rules of the Party."

[12]I shall refer to its position, duties and powers under the constitution of the Party later in this judgment. The disputes panel is a subcommittee of the NEC. Miss Twycross' report was considered by the disputes panel on 21 January 2003. The minutes record the following. Under the heading, "Nottingham LGC selection":

"The selection process in Nottingham city has been compromised by what East Midlands regional office believes to be wide spread membership abuse in parts of the city, especially Nottingham East and parts of Nottingham South. Specific allegations and complaints were received with respect to four wards, Arboretum, Berridge, Dales and Lea Valley. A number of witnesses have come forward to back up the allegations. "

East Midlands regional Labour Party requested the NEC to take action in this matter and following further investigation by the regional board, should membership abuse be found to have taken place, then disciplinary action be taken. Should the regional board find evidence of membership abuse, the selections in the ward to which specific complaints relate would have to be ruled unsound and the regional board to be allowed to impose candidates in the wards concerned. It was agreed that a report by the regional office be endorsed and that Kath Spate be designated to oversee the investigation by the regional board and should it be required authorise any subsequent imposition of candidates for the local elections on 1 May."

[13]The NEC itself considered the minutes of the disputes panel at its meeting on 28 January 2003. The NEC minutes of that meeting state:

"Disputes panel, 21 January 2003, it was resolved that the minutes be accepted."

[14]There was an issue as to the meaning of this minute. The defendant contends that it means that the NEC agreed with and thereby added its authorisation to the action decided upon by the disputes panel. The claimants contend that the minute means no more than that the disputes panel minutes were accepted as being a record of its deliberations.

[15]An investigation panel was set up as a result of the decision of the disputes panel, consisting of two members of the regional board of the Labour Party, Mr Wood and Miss Woodings, and the regional Party official, Mr Bursall. There is an issue raised only in the claimants' skeleton as to whether Mr Bursall was a member of the regional board. The rules of East Midlands regional council, the former name of the regional boards, provided accredited full time organisers within the region shall be ex officio members.

[16]Mr Bursall was present during the hearing of this application. I was told by Mr Giffin on instructions that Mr Bursall is an accredited full time organiser within the region. Given the lateness of the appearance of this issue I accept for the purposes of this application that he is indeed such and therefore as such a member of the regional board.

[17]On 31 January 2003, Miss Twycross wrote to all candidates and panel members in Nottingham and all ward members in the six affected wards. Her letter to local government candidates and panel members was as follows:

"The regional board of the East Midlands Labour Party has been authorised by the National Executive Committee to undertake an investigation into the circumstances surrounding the local government selections in Nottingham city. Allegations have been made about the selections in a number of wards including Arboretum, Berridge, Bridge, Dale, Lea Valley and Radford Park. If you have already received another letter about this it is because you may live in one of the above wards about which allegations have been made and I apologise for any duplication. "

If you have any evidence relating to malpractice in connection to the selections or in relation to Labour Party membership irregularities generally, please could you contact this office to let us know. The regional board would welcome any information you can provide in this matter and the regional board members are making themselves available at this office at the following times." Times were given on Wednesday 12 and Monday 17 February.

[18]A letter in similar terms was sent to all ward members in the six affected wards. According to the defendant's evidence, some 30 original statements and other documents filling a lever arch file were submitted to and considered by the investigation panel. In addition, 41 persons gave oral evidence to the panel. The interviews took place over three days, 12, 17 and 18 February 2003, an extra day being added because of the numbers that wanted to speak to the panel. Notes were taken at the interviews. On the first day of interviews the Nottingham Evening Post published a long article on the allegations and investigation. The article included the following statements:

"The Evening Post has spoken to two key witnesses who were complicit in the alleged irregularities and who are now helping the Labour Party with their enquiries. One is a woman who allegedly assumed the identity of a genuine absent member to take part in a selection meeting last May when councillor Afgah lost the crucial membership vote. Councillor Afgah represents Forest Fields which will shortly become Berridge due to a shake up by the Electoral Commission. "

The woman has told the Labour Party and the Post that she walked into the selection meeting with someone else's genuine membership card, forged her signature on the attendance register to gain entry and voted under instruction from someone else. The woman, who asked to remain anonymous, said, 'Two men approached me and gave me the membership card. It was a little card, they said it was someone else's, they gave me the names of people they wanted us to vote for. There was a table there and they were checking up on the cards. They checked the table, I just forged the signature. We had to write all six names down and then we were told to tick the names we wanted and cross out the names we did not. I just did what everyone told me to do.'"

[19]Her attendance was a serious breach of Party rule 5A.4 (b) which states:

"To be eligible to attend short-listing at selection meetings a person must have been a member of the constituency Party concerned for at least 12 months from the date of the first meeting convened. The woman is understood to be more than one of 12 people that it is alleged were not eligible to participate in the meeting either because they were not members or because they did not live in the relevant ward."

[20]The article continued:

"Councillor Afgah's complaint centres on the allegation that people had been packed into the local meeting that decided the short-listing of candidates for the new Dale ward and left him out. Packing is a political term used to describe instances where people are signed up as Party members by factions for the sole purpose of using their membership to influence votes. One local member stepped forward and admitted to the Post that he was given money to join the Labour Party and before the appropriate meeting last July was instructed to vote against Ali Afgah. The man, who refuses to be identified, regrets his decision. 'I have written everything down and it has been given to the Labour Party,' he told the Post."

[21]The informant referred to in the article gave evidence to the investigation panel. Three of the claimants gave oral evidence to the panel. One claimant, Mr Ahmed, gave written evidence. Mr Ahmed was given a time slot on 12 February to give oral evidence but did not attend. He alleges that he was told by an unnamed man that unless he had evidence of malpractice the panel would not have time to hear him, which is why he submitted a written statement. He stated that no irregularities had occurred in the selection in Dale Ward. The sixth claimant submitted a written representation by letter dated 17 February 2003 in which she too stated that no irregularities had occurred and that she had been told that there were no appointments available for her to be interviewed by the panel. She did, nonetheless, appear before the panel on the following day.

[22]According to Miss Twycross, and confirmed by Miss Spate, the latter was kept informed of the procedures used and the progress of the investigation. She met with Mr Wood, Miss Woodings and Miss Twycross at the party's spring conference in Glasgow on 15 February 2003 and confirmed that she approved the conduct of the investigation. Miss Woodings produced and circulated a spreadsheet summarising the evidence that had been seen and heard by the panel when commenting on it.

[23]On 28 February, Miss Spate met with the panel to discuss the evidence and reach a decision. Miss Twycross also attended the meeting. There is an issue as to whether she took part in the decision-making process. It was agreed by the investigation panel and by Miss Spate that there was sufficient evidence to render the selections in five wards unsound so that the selections should be withdrawn and that candidates should be imposed in those wards.

[24]They decided that there had been wide-spread voting and membership irregularities in all five affected wards, including ineligible holding of membership when the member was not on the electoral register for the given address and/or ward and payment of membership subscriptions by third parties, contrary to rule 2B.2 at chapter 2 of the Party rules.

[25]Miss Spate accordingly authorised the imposition of candidates by the East Midlands regional board. Thirteen candidates, including the claimants, were affected but only the claimants have brought proceedings. The panel and Miss Spate decided in relation to one ward, Arboretum, that the evidence of malpractice was insufficient, and so the selection stood. A recommendation was also made that a disciplinary case be taken against the person who was suspected of being the ringleader of the faction that was behind the membership abuses.

[26]At present, no recommendation of disciplinary action has been made against any other person. The decision to withdraw the selections of the 13 candidates, including the claimants, was not based or dependent upon allegations that the candidates themselves were personally implicated in the wrongdoing, but only upon the alleged irregularities in their selection. Miss Spate wrote to all the local government panel members, that is, those who were on the panel from whom potential candidates could be selected, including the claimants, on 3 March to inform them of the position. The letter stated:

"Reference is made to the investigation into local government selections in Nottingham. I would like to inform you that, having considered the evidence, the regional board has found that the selections in the following wards are unsound: Berridge, Bridge, Dale, Lea valley, Radford and Park. The NEC has therefore authorised the regional board to impose candidates in these wards. All panel members will be informed of this direct and invited to contact this office if they would like to be considered for selection in these wards. Other members not currently on the panel may also put themselves forward. The selections in Arboretum ward stand."

[27]As a result of that letter each of the claimants put himself or herself forward as a potential candidate for nomination, but without prejudice to their contention that they had already been duly selected Labour Party candidates. A letter before action on behalf of the claimants was sent on 7 March 2003 threatening proceedings for injunctions. The Party's solicitor replied on 11 March, rejecting the claimants' assertions. Miss Twycross produced a three-page report on the panel's findings, dated 16 March 2003. It included the following passages:

"Lea Valley ward. The branch has never been established within the framework of Labour Party rules and did not have the authority to run its own selections. In addition, the branch secretary responsible for the short-listing and selection meetings had previously been expelled for membership abuse and had rejoined under an alternative spelling of his name with a separate membership number. Further evidence from the liquidation of the results was provided by one of the successful candidates who said that pieces of paper with the names of the two successful candidates were circulated at the selection meeting. "

Dale ward. The decision to overturn the selection in Dale was based on evidence of general membership irregularities. This meant that the membership list and the membership of all those attending the short-listing meeting cannot be considered to be sound. There is also evidence of manipulation of the result including running a coordinated slate and the use of mobile telephones during the meeting. "A number of people came forward to make statements but they have not paid their membership or have paid for the membership of others on behalf of a corpus within the Party in Nottingham. This corpus, among other things, is alleged to have organised selection interviews among its own slate of candidates at Labour Party selection meetings. Evidence exists that pre-meetings are held by this corpus and are coordinated to in an attempt to affect the outcome of selections. "Examination of the membership lists demonstrates typical signs of membership abuse including a volatile membership, large members of people on reduced rate paid by non-continuous payment methods and a large number of people of different addresses to those on the electoral register or not on the electoral register itself. It was clear that the problems in Nottingham had been an issue for at least two decades and the local parties needed support in dealing with this issue. One ward had also had a candidate imposed in two previous elections and it was felt that habitual use of imposition without putting in effective measures to remedy the situation had contributed to the current problems."

[28]It continued:

"One member (who was named) is cited throughout as acknowledged leader of the corpus and it was decided that there was sufficient evidence to take a case against him to the NEC. This evidence includes: 1. Interview of people for an official panel of candidates. 2. Instructing an employee to obtain a member's card and to participate in a short-listing meeting. 3. Organising payment of members' subscription fees. 4. Seeking to influence the outcome of selection meetings from outside by communicating directly with people inside the meeting by mobile phone and also by coordinating pre-meetings. 5. Obtaining membership lists without authority through a third party in an attempt to influence the outcome of the selection meeting. 6. Organising appointments within the Labour Party. It is recommended that the NEC disputes panel endorse the decision by the investigating panel in relation to the five wards concerned where the regional board should now impose candidates for the May elections."

[29]They also recommended that a disciplinary case against the person named should be taken to the NEC. The minutes of the disputes panel meeting of 17 March 2003 record the following:

"A report from the regional organiser was tabled at the meeting. An investigation conducted by the regional board and overseen by Kath Spate into the selections malpractice in Nottingham city wards found that wide spread voting and membership irregularities took place in Berridge, Lea Valley, Radford, Park, Bridge and Dale wards. "

The investigation recommended that selections in these wards should be overturned and new candidates imposed at the earliest opportunity. The investigation found that there was insufficient evidence to take action in Arboretum ward and that the selection should stand. The Party has received legal representation since the investigation on behalf of six of the 13 candidates whose selections were found to be unsound. It was agreed to endorse the investigation panel's recommendations in relation to the five wards and that the regional board should impose candidates for the May elections."

[30]It was also agreed that a disciplinary case should be taken to the NEC against the person named in Miss Twycross' report and set out in brief the grounds for that. The NEC met on 25 March 2003. The minutes of the meeting are not yet available. According to the defendant's evidence, the NEC endorsed the minutes of the 17 March disputes panel meeting, that is to say, endorsed and ratified the course of action approved by the disputes panel at the meeting of 17 March. The claimants do not accept that this is what occurred. The regional board arranged for interviews with interested potential candidates to take place in the afternoon and evening of Friday, 28 March 2003 at the end of which decisions as to which candidates were to be imposed would be taken. The results of those interviews were necessarily not available when the hearing of the claimants' application took place.

[31]It goes without saying that the claimants deny that there were any irregularities affecting their selection. As mentioned above, the Party does not presently make any allegation as to their personal involvement in malpractice. The claimants' allegations

[32]The claimants' allegations raise the following issues:(a) Did the NEC have power under the Labour Party rules to remove the claimants as Labour Party candidates and to impose alternative candidates?

(b) If the answer to (a) is yes, did the NEC have power to delegate its authority to the disputes panel and did the disputes panel itself have power to delegate to the investigation panel and Miss Spate?

(c) Has the decision to remove the claimants been rendered unlawful by reason of a breach of the laws of natural justice?

(d) Were there defects in the investigation decision making such as to render the new result unlawful?

(e) Was the material before the panel, and hence the disputes panel and the NEC itself, insufficient to justify the action taken?

(f) Is the relief sought by the claimants such as the court can or should give?

(g) Should relief be refused in the exercise of the discretion of the court by reason of the claimants' delay? The principles to be applied on an interim application in the circumstances of this case

[33]In a normal case, where a claimant has established that there is a serious issue to be tried, the issue of interim relief is decided on the basis of the balance of convenience. It is common ground that such an approach is inapplicable in the present case. In reality it is extremely unlikely that there will be a trial. The relief sought by the claimants must be given today or never. Conversely, if relief is given, the local Party would be precluded from fielding the candidates it wishes. Thus, this case will be decided by the outcome of this interim application.

[34]In such circumstances the court must do its best on the material before it. It cannot resolve factual issues but it may have to form a view as to the likely final determination of such issues. The approach of the court is authoritatively set out in the speech of Lord Diplock in NWL v Woods

[1979] 1 WLR, 1294

at 1306.

[35]Since one of the orders sought by the claimants is a mandatory injunction it is necessary also to follow the guidance given in Zockoll Group Limited v Mercury Communications Limited

[1998] FSR, 354

, 366, approving the judgment of Mr Justice Hoffmann, as he then was, and Films Rover Limited v Callum Film Sales Limited

[1987] 1 WLR 670

, 680, and that of Mr Justice Chadwick, as he then was, in Nottingham Building Society v Euro Dynamics Systems

[1993] FSR 468

, 474.

[36]It is sufficient to cite the judgment of Mr

Justice Chadwick in the last of those cases:

"In my view, the principles to be applied are these: first, this being an interlocutory matter the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be wrong, in the sense described by Mr Justice Hoffmann in Films Rover Limited v Callum Film Sales Limited. "

Secondly, in considering whether to grant a mandatory injunction the court must keep in mind that an order which requires a party to take some positive steps at an interlocutory stage may well carry a greater risk of injustice if it turns out to have been wrongly made or an order which merely prohibits action, thereby preserving the status quo. "Thirdly, it is legitimate where a mandatory injunction is sought to consider whether the court does feel a high degree of assurance that the plaintiff would be able to establish this right at a trial. This is because the greater the degree of assurance the plaintiff will establish his right, the less would be the risk of injustice if the injunction is granted. "Finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted."

[37]It is important to appreciate that it is not the function of the court in this application to determine whether or not the allegations concerning the selection processes in the wards in question are well-founded, and I shall not do so. The power of the NEC under the constitution of the Labour Party

[38]The Labour Party is an unincorporated association. Its constitution is contained in its rules contained in its rule book, which constitute a contract to which each member adheres when he joins the Party. The rule book applicable to the claimants' selection was the January 2002 rule book. The rules are divided into chapters which include the constitutional rule, chapter 1, membership rules in chapter 2, rules relating to the selection for elected public office in chapter 5 and rules for Labour Party local government committees in chapter 12.

[39]The constitutional rules in broad terms establish the Labour Party, set out the party's structure, deal with the main provisions relating to finance, the party's programme and conference, the hierarchy of office holders, as well as establish two organs, the National Executive Committee and the National Constitutional Committee.

[40]Clause 2 deals with the Party structure:

"The Party organises itself into units that are geographically the same as Westminster Parliamentary constituencies. Each of these units is called a Constituency Labour Party, or CLP. Each CLP is then organised in branches, the London geographic area covered by each being agreed between the CLP and the NEC. In addition, local government committees may be established within areas of directly elected local government but excluding parish or community councils."

[41]Directly elected local government effectively means what in section 270 (1) of the Local Government Act 1972 is termed a local authority, save that parish councils and community councils were expressly taken out of the rules. The creation of a local government committee is made subject to the approval of the appropriate NEC representative.

[42]The fundamental aims and values of the Labour Party are set out in the notorious clause 4. It describes itself as a democratic socialist party. As mentioned above, the rules contain detailed provisions relating to the selection of candidates for elected public office. These provisions are contained in chapter 5. Rule 5.1 is as follows:

"A right of Labour Party membership includes the opportunity to select candidates for public office at every level: local, regional, national and European. Principles shall apply to these selections that will enable members to select Labour Party candidates representative of our society who can uphold the highest standards of probity and integrity in public life."

[43]Rule 5A.2 provides:

"Party units shall act in accordance with guidelines that shall be issued by the NEC in the application of these rules. The NEC has the authority to modify these rules and any procedural guidelines as required to particular circumstances or to further the stated objectives and principles of these rules."

[44]It is clearly arguable that the reference to "these rules" is to all the rules relating to the selection of candidates for elected public office. Indeed, in my judgment, that is the correct interpretation of rule 5A.2. The selection of local government candidates is the subject of chapter 5B of the rules, and 5B.1 provides:

"The NEC shall issue procedural guidelines for the selection of local government candidates. Local government committees established in accordance with chapter 12 of these rules shall be responsible for implementing these guidelines in line with the rules detailed in 5A (i) below. Local government committees shall agree their procedures with the appropriate regional director or other designated officer approved by the NEC."

[45]Chapter 5B limits the members who may participate in the selection process, see rule 5B.5. Rule 5B.6 requires that:

"The short-listing and selection of candidates shall consist of a vote by eliminating ballot of all eligible individual members of the electoral ward/division on the basis of one member, one vote."

[46]Rules 5B.7 and 8 are as follows:

[47]Rule 5B.7:

"Any disputes arising out of the non-endorsement of nominees onto the panel of prospective local government candidates shall be referred to the appropriate regional appeals board. Disputes arising out of the short-listing or selection meeting shall be submitted to the appropriate Local Government Committee. The NEC shall issue guidelines to the relevant party units and any appellant for dealing with any disputed matter."

[48]Rule 5B.8:

"Any exception to rules 5B.1 5B.7 can only be made with the approval of the NEC or by an officer authorised by the NEC."

[49]No guidelines have been issued by the NEC under rule 5B.7.

[50]It is to be noted that nothing in the rules themselves expressly confers power to impose a candidate on a local unit of the Party. The only express reference to the imposition of candidates is to be found in the procedural guidelines issued by the NEC under rule 5B.1. These contain further detailed provisions for selection of candidates including the procedures to be followed for their nomination, short-listing and selection.

[51]Paragraph 12 (b) of those guidelines is as follows:

"Where any situation requires that a candidate be imposed for local government election the management committee of the appropriate local government committee may only do so with the approval of the appropriate regional director of the Party on behalf of the NEC. In exceptional circumstances the NEC shall require a panel of the regional executive committee to make a decision which shall be final and binding on all parties."

[52]As mentioned above, the regional executive committee is the former name of the regional boards of the Labour Party.

[53]On the face of it, the dispute as to the propriety of the selection of the claimants as local government candidates should be submitted to the local government committee for the area. The fundamental constitutional question in these proceedings is whether rules 5B.8 and 5A.2 confer power on the NEC itself to resolve such disputes and to impose candidates. In order to answer that question it is necessary to examine the role and powers of the NEC under the rules.

[54]The constitution and, in general, the powers of the NEC are to be found in clause 8 of chapter 1. Its importance is demonstrated by its membership set out in clause 8.1. Its purposes are set out in general terms in paragraph 2 and include in subparagraph (c) the maintenance of a healthy party at all levels engaged in the community upholding and the high standards of public life.

[55]Paragraph 3 (a) confers far-reaching powers. It provides that:

"In furtherance of its primary purpose and key functions the duties and the powers of the NEC shall include: "(a) to uphold and enforce the constitutional rules and standing orders of the Party and to take any action it deems necessary for such purpose, including disaffiliation, disbanding, suspending or otherwise disciplining any affiliated organisation or Party unit; in furtherance of such duties it shall have the power to suspend or take other administrative action against individual members of the Party subject to the provisions of the disciplinary rule set out in chapter 6 of these rules."

[56]Subordinate bodies are referred to in paragraph 3:

"The NEC has power to determine disputes, see clause 8-paragraph 4, and to delegate, see paragraph 5."

[57]Paragraphs 2 and 5 of clause 10 are important. Paragraph 2 authorises the NEC to vary the procedure for the selection of Parliamentary and local government candidates. It is as follows:

"The NEC shall have the authority to sanction, where the NEC considers local circumstances render it necessary, modifications in the rules laid down by party conference for the various party units. Such modifications shall comply with the spirit and intention of the rules adopted by party conference and may not alter the party objects, the basis or conditions of affiliated and individual membership, vary the procedure for the selection of parliamentary or local government candidates (except as provided for in the rules) or effect a change in the relationship between CLPs and the party."

[58]It is subject to the restriction contained in parentheses. This, however, takes one back to the questions raised by rule 5A.2 and rule 5B.8.

[59]Paragraph 5 of clause 10 of chapter 1 is as follows:

"For the avoidance of any doubt, any dispute as to the meaning and interpretation or general application of the constitution of standing orders and rules of the Party or any unit of the Party shall be referred to the NEC for determination and the decision of the NEC thereupon shall be final and conclusive for all purposes. The decision of the NEC, subject to any modification by a Party conference as to the meaning and effect of any rule or any part of this constitutional rule, shall be final."

[60]In addition, other parts of the rules contain provisions conferring powers on the NEC, see, for example, rule 2A.7 of chapter 2 and 2B.1 (b) and 2B.2 and 5E.4, 6A.1 and 6B.2.

[61]It is evident from the composition and powers of the NEC that it is the central governing body of the national Labour Party. In deciding whether it has power under the rules, and in particular rules 5A.2 and 5B.8, to make an exception to the rules for the selection of candidates for local government elections by deselecting selected candidates and imposing new candidates, it is right to bear in mind that the Party is a national organisation. A narrow interpretation of the NEC's powers would mean that the national Party would be powerless to intervene when a local unit has been taken over by persons whose principles or aims are inconsistent with those of the national Party. It is obvious that small groups of persons, or indeed one person with sufficient personal influence or power, may take control of meetings of local units and of the local government committee and there is the potential for their power to be used corruptly or for purposes mimical to those of the Party.

[62]It is notorious that this has happened in the past, and indeed incidences of the imposition of candidates are referred to in the documents before me. The procedural guidelines for the selection of local government candidates, assume that there is such a power: I refer to paragraph 12 (b).

[63]In my judgment, the rules should be given a purposeful and practical interpretation and if necessary I should hold that the rules, and in particular rules 5A.2 and 5B.8, do empower the NEC to intervene in such circumstances if necessary by the deselection and imposition of candidates.

[64]I have reached this conclusion without reference to the principle contended for by Mr Giffin that the rules are to be interpreted in accordance with the practice of the Party. He referred me to the judgment of Lord Denning, the Master of the Rolls, in Lewis v Heffer

[1978] 1 WLR, 1061

at page 1076 D and to the judgment of Lord Woolf, the Lord Chief Justice, in Dunlop Tyres v Blows [2001] EWCA, CIV, 1032 at paragraphs 21 and 22.

[65]In my judgment, the principle applied in those cases must be applied with caution, particularly in view of the principle established by the House of Lords in James Miller and Partners v Woodworth Street Estates [1970] Appeal Cases, 583, that it is illegitimate to use the conduct of the parties to a contract after its conclusion as an aid to construction. Where there is no equivalent of paragraph 5 at clause 10, it cannot be right for a member of a party to be bound by the interpretation of rules of which he has no notice. Just as a custom relied upon in support of an allegation of implied term must be certain, well established and notorious, so must any practice relied upon as establishing a particular meaning to contractual rules of the kind presently under consideration.

[66]The material before me arguably establishes that there is an established and notorious practice for the NEC to intervene in local units to deselect candidates and to impose candidates, but it goes no further than this. I refer in this connection to paragraph 12B of the NEC procedural guidelines for the selection of local government candidates, to paragraph 88 of Miss Twycross' witness statement, the assumption made by the disputes panel at its meeting on 21 January 2003 that candidates could be imposed, the minutes of its meeting on 17 March 2003 relating to Bath and North-east Somerset local government committee, the reference in Miss Twycross's report of 16 March 2003 to the previous imposition of candidates, and to the first claimant's own witness statement at paragraph 7, which may refer to one of the same incidents as Miss Twycross. I am told that the power of the NEC to impose candidates has never before been challenged.

[67]There are, however, two reasons why I should not make any final determination on the relevant powers of the NEC. The first is that this is an interim application, moreover, one for which the parties have had to prepare under time pressure and in which judgment has had to be given as a matter of urgency. The second is that paragraph 5 of clause 10 is an agreement by the members of the Party that any dispute as to the meaning of the rules should be determined by the NEC itself. Mr Coppel, on behalf of the claimants, has not suggested that that provision cannot be given effect. In his skeleton argument he cited the judgment of Lord Justice Denning in Lee v Showmen's Guild of Great Britain

[1952] 2 QB, 329

, at page 344, in which Lord Denning rejected the submission made in that case on behalf of the trade union that it could apply any honest interpretation of its rules that it chose, even if it were objectively incorrect. Lord Justice Denning said this:

"The courts have never allowed a master to dismiss a servant except in accordance with the terms of the contract between them. So also they cannot permit a domestic tribunal to deprive a member of his livelihood or to injure him unless the contract and its true construction gives the tribunal power to do so. I repeat 'on its true construction' because I desire to emphasise that the true construction of the contract is to be decided by the courts and by no one else. "

Sir Frank Soskice argued that it was for the committee of the guild to construe the rules and that so long as they put an honest construction on them their construction was binding on the members even though it was a wrong construction. I cannot agree with that contention. The rules are the contract between the members, the committee cannot extend their jurisdiction by giving a wrong interpretation of the contract, no matter how honest they may be. They have only such jurisdiction as the contract and its true interpretation confers on them, not what they think it confers. The scope for their jurisdiction is a matter for the court and not for the parties, let alone for one of them."

[68]Mr Coppel's citation began with the sentence beginning 'Sir Frank Soskice'. It thus omitted, doubtless without appreciation of its relevance, the significant preceding sentence. This case differs from Lee in an important respect. The members of the Party have agreed by clause 10.5 that it is the NEC who shall determine disputes as to the interpretation of the rules. The effect of that provision is that the NEC can adopt and apply any honest and reasonable interpretation of the rules.

[69]It is at this point that questions of delay and time become relevant. The constitutionality of the decision to impose candidates could have been challenged immediately after it was announced by the letters of 3 March 2003. Given time, the NEC could have ruled on the extent of its powers. The speed with which this judgment has had to be given has precluded its specific reference to the NEC for its ruling.

[70]The rules are clearly open to the interpretation that NEC has the necessary power; indeed, I consider that this is the correct interpretation. I think that in deciding whether or not interim relief should be given I should assume that if the NEC were to rule, it would adopt an interpretation consistent with its practice in the past and in this case. It follows that for the purposes of our application for interim injunctions, the claimants have not established that the NEC lacked the power to deselect them and to impose candidates in their place. Delegation of power by the NEC

[71]There is an issue as to whether the NEC's powers were lawfully and effectively delegated to its disputes panel and to the investigation panel. Clause 8, paragraph 5 confers a wide power of delegation, including power to delegate to subcommittees. The disputes panel is a subcommittee of the NEC, see heading 10 to the minutes of the NEC meeting of 28 January 2003 where the members of the disputes panel appear to be all members of the NEC.

[72]On a sensible interpretation of the rules, the disputes panel must be able to subdelegate, since otherwise all its members would have to carry out every investigation it thought appropriate. When it decided to authorise action by the regional board it must have envisaged that only some of the board would be involved in the investigation. The board has a membership of 23 persons which would make it impractical for it to conduct the investigation as a body.

[73]Again, the issue as to the power to subdelegate must ultimately be for decision by the NEC and again, in my judgment, it would be wrong to grant injunctions in the circumstances of this case on the basis that it would decide that decisions made by a subcommittee with its knowledge were outside the latter's powers. But none of this matters if the NEC has ratified the decisions taken by the disputes panel and the regional board.

[74]In this connection, there was an issue as to the meaning of the NEC's minutes and as to what was decided at its meeting on 25 March 2003 and the likely interpretation of the acceptance noted in the NEC's minutes and the minutes of the subcommittee is that the NEC agrees with the decisions taken by the latter. The normal wording for a minute of a main committee that merely accepts the minutes of a subcommittee as a true record of the latter's deliberations is that the subcommittees minutes are noted, not that they are accepted.

[75]Certainly, there is nothing in the evidence to suggest that the NEC has dissented from the decisions which are the subject of these proceedings. In any event, however, it is not suggested that the NEC could not even now ratify the action decided upon by the disputes panel and the regional board. A degree of reality is required in considering this issue. The defendant is the General Secretary of the Party and it is highly unlikely that he would be contesting the claimants' claims if the NEC dissented from the decisions of the disputes panel.

[76]For these reasons I will not grant injunctions on the ground of a lack of valid power of delegation or subdelegation. For the sake of completeness I consider that the evidence is clear that Miss Spate did oversee the investigation by the regional board and authorised the imposition of candidates as authorised by the disputes panel minute on 21 January 2003. Breach of the rules of natural justice and defects in the investigation process

[77]There is an issue between the parties as to whether the rules of natural justice were required to be observed by the investigation panel. It is right that the decision which is under challenge did not result in any loss of livelihood or property on the part of the claimants or the imposition of any penalty. Nonetheless, in my judgment, natural justice requires that the investigation be conducted fairly and honestly and I shall assume that it also requires that the claimants be given notice of the concerns of the investigation panel sufficient to enable the claimants to address the allegations that have been made if they wish to do so. But clearly, natural justice did not require, in my judgment, that the claimants be present when the interview panel interviewed informants, or that they be given an opportunity to question them.

[78]The claimants contend that the result of the investigation was prejudged. They refer to the wording of Miss Twycross' report tabled at the meeting of the disputes panel on 21 January 2003 and the wording of the dispute panel's minute. The wording of these documents is unfortunate, but taken as a whole it is clear that the investigation authorised was intended to be a real one, not one whose outcome had been prejudged. I refer in particular to the passage of the minutes of the disputes panel meeting on 21 January 2003, beginning, "Should membership abuse be felt to have taken place." In addition, Miss Woodings' spreadsheet is cogent evidence of the reality of the investigation, as is the fact that the panel decided that there was insufficient evidence to warrant action in respect of Arboretum ward.

[79]Of greater concern is the contention that the investigation was flawed by tendentious requests for information. Miss Twycross' letter of 31 January 2003 sought evidence, "Relating to malpractice". The wording of the letters was unfortunate. The request should have been in neutral terms seeking evidence of propriety as well as impropriety. However, it is clear that witnesses came forward who did speak of the regularity of the proceedings as well as their irregularity.

[80]It is also of concern that the claimants were not given notice of the allegations that had been made concerning their selection, even in broad terms. However, the article in the Nottingham Evening Post made it clear that complaints had been made of impersonation and packing of meetings and it is also clear that some, at least, of the claimants read it and had it in mind when responding to the investigation. Thus, when he gave his evidence to the investigation panel, the second claimant, according to the note of his evidence, stated that, "After the Post article everyone was asking questions." The fifth claimant, in his letter to Miss Twycross on 17 February 2003, also referred to that article. But whether some of the claimants did not have adequate opportunity to address the allegations that had been made is an issue that I cannot resolve on this application. It therefore raises a serious triable issue. However, on the evidence before me, I consider it unlikely that the claimants will succeed on this issue on the facts; and even if they were to succeed on the facts, I do not think it likely that there would be entitled to an order declaring the decision made by the disputes panel void, or setting it aside, given the substantial evidence on which it was based.

[81]The claimants also contend that the investigation and therefore eventual decision were flawed by the participation of Miss Twycross, who is not a member of the original board. Even assuming the claimants' factual allegations to be well-founded, and they are disputed, in my judgment, her participation could not invalidate the investigation or the decision made following it. The sufficiency of the material on which the decision was based

[82]Mr Coppel submitted under this head that the court should leave out of account Miss Twycross' reports, including that of March 2003, at page 131 of the exhibit to her witness statement, on the ground that they were produced after the decision to impose candidates had been taken, and, in the case of the second report, for the purpose of these proceedings. He referred me to my own judgment in Nash v Chelsea College of Art and Design [2001] EWHC Admin, 538. However, the context of the present case is very different from that of Nash. It is not clear in the present case that the investigation panel or the disputes panel or the NEC were under any legal duty to give reasons for their decision to the claimants, nor it is clear that there was any duty to give detailed reasons contemporaneously announcing the decision. The decisions made were not judicial or quasi-judicial. There was no, for want of a better word, lis or any quasi-lis. The decisions were made as a result of a factual investigation. In any event, there is a strong public interest that the proceedings of political parties be free from corruption, and the information in the later report must be relevant to the grant or refusal of relief.

[83]I do not propose to summarise the evidence accepted by the investigation panel. The spreadsheet prepared by Miss Woodings is an impressive document showing her careful and rigorous approach to the information put before the panel. Indeed, in some respects her comments display an unnecessary rigour in, for example, excluding hearsay evidence.

[84]As Mr Giffin pointed out, there is substantial evidence that both short-listing meetings and selection meetings were rigged. When considered together with Miss Twycross' last report, I am in no doubt that the material before the panel was such that it could reasonably have decided that the selection process in the wards in question had been corrupted, and that the proper course was to intervene and to impose candidates who could be seen as unimpeachable. The appropriateness of relief

[85]In my judgment, the claimants face considerable difficulties under this head. Mr Giffin submitted that the relationship between a political party and its candidates for elected office should be one of trust and confidence. It followed, he submitted, that the court should not grant an injunction, and especially an interim injunction, compelling a party to permit a person to stand for election in its name. Mr Coppel disputed this. He pointed out that after election a successful candidate is free to reject the advice or directions of his party and may even leave his party without forfeiting his elected office. He is a representative of his electorate and not of his party.

[86]In essence, I accept Mr Giffin's submission. The honesty and integrity of our elected representatives are of the greatest importance in a democracy. And so are the honesty and integrity of our political parties and of their processes for the selection of the candidates who stand in their name. Furthermore, it is evident that the corruption of the selection process reflects on the persons selected as candidates. The selected candidates may, in fact, be persons of complete integrity who are entirely independent of those responsible for the irregularities in their selection. But even so, the inference may be made that at the very least their selection was seen by those responsible for the corruption of the selection process as being in their interests. Presumably, it is for such reasons that the Party has been qualified in its acceptance that it is not alleging at present that the claimants were involved in the irregularities found to have occurred in the wards in question.

[87]In my judgment, save possibly the most exceptional circumstances, the court should not compel a registered political party to permit candidates to stand for election in its name if the party has genuine and substantial concerns as to the regularity and honesty of the procedure for their selection. In the present case, the defendant has established that, at the very least, it has such concerns. While the claimants have established a triable issue, they have not established any exceptional circumstances that could justify the granting of a mandatory injunction.

[88]In addition, it appears from the reasons I have given that I am not satisfied that the test for the grant of mandatory relief formulated by Mr Justice Chadwick in Nottingham Building Society v Euro Dynamic Systems, referred to above, has been satisfied. In my judgment, the risk of injustice if injunctions are granted are greater than the risk of injustice if they are refused.

[89]It should be borne in mind that a refusal by the court to compel the Labour Party to permit the claimants to stand for election in its name does not prevent their standing for election as independent candidates. The claimants may do so, and they may then put before the electorate their case that they were incorrectly deprived of their candidacy as Labour Party candidates, and their qualifications for elected office. The electorate of the wards in question would then be able to choose as between them and the candidates imposed by the Labour Party.

[90]For similar reasons, the granting of an injunction restraining the Labour Party from submitting to the returning officer for Nottingham city council a certificate authorising persons other than the claimants as candidates for the wards in question, in place of the claimants, should not be granted and will be refused. Such an injunction would effectively be a final injunction preventing the electorates of those wards from having a Labour Party candidate for whom to vote if they so choose in place of the claimants. It would prevent the Labour Party from putting forward candidates to stand in its name, even though if there were to be a trial the claimants' case might prove to have been ill-founded and, insofar as a judgment can be formed at this stage, it is likely to prove ill-founded. Such an injunction would place pressure on the Labour Party to authorise the claimants in whose selection it has no confidence, on grounds that are genuine and substantial, to stand as candidates in its name. In my judgment, the arguable ground established by the claimants does not justify the grant of an injunction that would interfere with the democratic process by preventing candidates standing in the name of the Labour Party being put before the electorate.

[91]For these reasons the application for interim relief will be dismissed.

Cited in 12 later judgments

and 3 more of the most senior