(1) MR B CALLAGHAN (2) MR J CARRIGAN v ASLEF [2003] UKEAT 564_01_2001

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 564_01_2001

Case No Appeal No. EAT/564/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) MR B CALLAGHAN (2) MR J CARRIGANAPPELLANT

ASLEFRESPONDENT

Before

Mr Justice Burton

Date 20 January 2003

[1]APPEARANCES For the Appellants MR ROBERT KELLAR (of Counsel) From the Pro Bono Unit For the Respondents MR BRIAN LANGSTAFF (One of Her Majesty's Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal, originally brought by two Appellants, Mr Callaghan and Mr Carrigan, against the findings of the Certification Officer, given on 2 March 2001, in respect of which permission was granted by a different division of this Tribunal to proceed with regard to two of the fifteen complaints which were before the Certification Officer, which complaints, namely complaints 8 and 12, were dismissed by the Certification Officer.

[2]The Certification Officer was dealing with a number of matters which arose out of an apparent crisis in the affairs of the Respondent Trade Union (ASLEF) in the summer of 2000, and a number of applicants made application to the Certification Officer; and in respect of some of those complaints findings were made in their favour, in terms of breach, although nothing further than a declaration was made by the Certification Officer, and in relation to other complaints, including 8 and 12, they were dismissed.

[3]Nothing before us today remains material in respect of what I have called that crisis period, which seems to have involved the resignation or removal of a number of officers of the Union, such that, at one stage, there was not a quorum of members of the Executive Committee, of whom there are normally eight, with a quorum of five. One of the Executive members, who originally resigned, it appears was persuaded by a full assembly of the Union to withdraw his resignation and to return to the Executive Committee, and some of the matters being considered by the Certification Officer related to the effects of his return to the Executive Committee; but none of that is now before us, and what is before us relates and relates only to disciplinary steps which were taken against the Appellant, Mr Carrigan, by the Union, which resulted in his expulsion from the Union. Mr Callaghan has withdrawn his appeal and we do not deal with him further.

[4]We are told that there was a right of appeal which was exercised by Mr Carrigan unsuccessfully, but none of that was before the Certification Officer or is before us today; we are dealing simply with the question as to whether the disciplinary hearing that was held was in breach of the Rules of the Union. The relevant Rules that have been before us are those that were made in 1999, and, by Rule 16 of those Rules, provision is made for an executive committee, consisting of eight members, five members to form a quorum, and it appears that a President and Vice-President were to be appointed from within the Executive Committee, and their normal term of office was for three years.

[5]There were provisions for the event of a vacancy in Rule 16(9) and it was that provision which was the subject of consideration of what one might call the political aspects of the Certification Officer's decision. By Rule 16(16), it is provided that the Executive Committee may determine anything upon which the Rules are silent. The Rules do not set out the role of the Executive Committee, as some rules do, but it is apparent that they have the role of administration of the union's affairs, and for that purpose, we are informed, it is custom and practice that sub-committees are, from time to time, set up, so that the Executive Committee can delegate to their members, and no doubt to individual persons, some of the duties that they carry out, including the day-to-day running of the affairs of the Union.

[6]There is a specific section of the Rules, headed up "Disciplinary Action" and that is Rule 29. The relevant sub-rules include the following:

"(3) The Executive Committee must give written notice to any member of their intention to proceed against him under this rule. The written notice must contain the full details of the grounds for taking such disciplinary action and must include any written evidence and correspondence submitted to the Executive Committee" (4) The member must be given three weeks' notice in writing of the charge, date, time and place of, and the procedure to be followed at, the hearing before the Executive Committee. The member shall be allowed to submit, not later than 10 days prior to the hearing before the Executive Committee, any written evidence or testimony in support of his case. (5) At the hearing before the Executive Committee no new charge may be raised. (6) The member shall be afforded a full and fair hearing before the Executive Committee. The member will be entitled to representation by a Society member and will be able orally to supplement any written evidence or testimony he has submitted, to call other members of the Society as witnesses, to hear the evidence against him and to have an opportunity of answering it, and to question his own and the Society's witnesses."

There are then provisions for the decision of the Executive Committee to be communicated to the member in writing, by sub-rule (8), and then a provision for an Appeals Committee in Rule 30. That Appeals Committee is to consist of 8 members, none of whom, it seems, would be members of the Executive, as would be obvious, and by sub-rule (3) the Appeals Committee shall elect a Chairman from their own number and not less than five members shall form a quorum, and, by sub-rule (6), the appellant shall be afforded a full and fair hearing before the Appeals Committee.

[7]The position so far as Mr Carrigan is concerned is that a resolution was passed by the Executive Committee at its meeting on 26 June 2000, which was attended by the five members of the Executive Committee, the four who on any basis were members, and a Mr Tyson, who was the member who had resigned and returned at the invitation and insistence of the assembly. Those five voted on a resolution proposed by Mr Samways and seconded by Mr Reed. There were three absentees from the Executive Committee, one of whom was Mr Carrigan himself, who was a member of the Executive Committee, apart from being, of course, a member of the Union.

[8]That resolution, number 528/408, was that the report, that is a report which had been placed before the assembly of members with regard to conduct complained of by Mr Carrigan, be noted and an EC sub-committee be created to deal with matters of discipline and report back to the Executive Committee. Mr Langstaff QC, who has appeared today for the Respondent Union, has pointed to the fact that the Certification Officer found that it was custom and practice for this Union to operate through sub-committees, but he has confirmed, in answer to a question from the Tribunal as to whether any sub-committee had previously been set up to deal with discipline, that there was not only no evidence to that effect, but his instructions were that this sub-committee, having been set up, now remains in existence effectively as a discipline sub-committee, which suggests that its existence did not antedate 26 June 2000, and this is certainly consistent with there having been no sub-committee previously to deal with discipline.

[9]As can be seen from the Resolution itself, the proposal was that the Executive Committee sub-committee should not simply prepare, but also hear, the matter, and having heard it, and no doubt reached a provisional verdict, report back to the Executive Committee to consider that verdict. In fact, that is what occurred, and there is no doubt that the Executive Committee, to which the three-man sub-committee reported back, was itself quorate. The membership of the three-man sub-committee, which, of course, consisted entirely of Executive members, was Samways, Wilkinson and Reed; there were thus two of the five ongoing Executive Committee members, Madden and Tyson, who were not members of the sub-committee. Mr Samways gave evidence before the Certification Officer that in any event it was thought fair by the Executive Committee that neither of those two gentlemen should sit in judgment on Mr Carrigan, because it was thought that they had, or could be said to have, interests hostile to Mr Carrigan and might thus be regarded as parti pris.

[10]The disciplinary hearing then occurred before the sub-committee on 6 September 2000. Prior to the disciplinary hearing, Mr Carrigan wrote a letter of 28 August 2000, indicating that he was going to have a representative, that he was planning to call two witnesses and that he requested that the following society members involved in giving evidence against him, no doubt named in the report to which we have referred, were present at the hearing in order that he was able to question them, and he gave their names.

[11]The hearing took place, and it appears that at the last minute, the Appellant's representative notified him that he would be unable to attend due to work commitments, but given the lateness of such notification, it was not possible for there to be a re-arrangement of the hearing, and, although the Appellant protested that he had no representative, it was clearly not anyone else's responsibility but his own and his representative's, and the sub-committee was not prepared to adjourn, and went ahead in those circumstances. None of the witnesses whom he, the Appellant, had asked to attend and be provided by the Union for him to question, did attend, and he did not produce any of the witnesses that he had said that he was going to produce. The hearing took place and he was found to have been guilty of the misconduct alleged, and the recommendation of the sub-committee, which was ratified by the Executive Committee, was that he should be expelled from the Union.

[12]His challenge to the Executive Committee, which is contained in what became complaints 8 and 12, resulted from a series of correspondence between the parties, leading up to the hearing. By a letter dated 18 October 2000, the Appellant set out the fact that he had complained on the day about the hearing proceeding without him having a representative, indeed, it recorded that what was taking place was totally unconstitutional, and, in that context, he complained about the absence of witnesses, in particular witnesses who were party to the accusations made against him. The Chairman and General Secretary answered that it was up to him to produce the witnesses and arrange for their attendance, and he recorded that he had protested at that injustice and quoted Rule 29(6) which stated, as he reminded the sub-committee that he was entitled to question what he called "their witnesses". He therefore complained in the letter of 18 October about the constitutionality of the committee, about the non-production of witnesses and about the absence of a representative, and he said that Rule 29(6) was abrogated due to no witnesses being called to enable him to defend his position, and abrogated due to his not receiving a fair hearing.

[13]In his complaint to the Certification Officer, not all those complaints were repeated. He complained that Rule 29(6) was breached due to his being denied witnesses' attendance at the disciplinary hearing. He had not been able to defend the false accusations made against himself in any form, which he believed to be totally unfair and against natural justice. In the articulation of the complaints by the Certification Officer, effectively seeking to summarise what he and the others were saying, in a letter dated 14 November 2000 to him, complaint 8 was formulated largely in the form in which it eventually went before the Certification Officer:

"That Rule 29(6) was breached on the 6 September 2000 by your not being allowed witnesses attendance at your disciplinary hearing, thereby not affording you a full and fair hearing before the executive committee."

The Appellant responded to that letter and gave particulars of that case. He said this:

"With regards to the attendance of witnesses I must inform you that I did indeed intend to have one witness present"

And he refers to Mr O'Brian. He requested his attendance at the hearing as a witness, but unfortunately, Mr O'Brian was unable to meet the required dates. He did not give any other particulars of the prejudice he said he suffered, or the complaint he was making, in respect of non-attendance of witnesses.

[14]Against that background, the solicitors for the Respondent Union wrote on 5 December 2000 to the Certification Officer, seeking to answer what they understood to be Mr Carrigan's complaint, and they set out as follows:

"8. Mr Carrigan complains that Rule 29(6) was breached at the disciplinary hearing on 6 th September 2000 as he was not allowed to bring witnesses to attend nor afforded a full and fair hearing before the Executive Committee. My clients respond by saying that Mr Carrigan was given adequate notice of the meeting. He had ample time to call witnesses. It is not of course the Union's job to call witnesses on his behalf."

And then it deals with a further case made in that regard.

[15]The end product was the formulation on that agreed basis of the complaints, numbering 1-15, which is what went before the Certification Officer. Complaint 8 read:

"The Executive Committee were in breach of Rule 16 Clause 1, between March and October 2000, because they conducted meetings with a quorum of less than five as required by the rules…. And that the same rule was breached in that "

Disciplinary hearings were held with only 3 members present"." Complaint 12:

"That the union has breached its rule 29(6) in that the disciplinary hearing of Mr Ballard was before three members of the executive committee instead of five."

Which is, of course, not a complaint made specifically by Mr Carrigan, but echoes his complaint. "Also that the same rule was breached on 6 September 2000 by Mr Carrigan not being allowed witnesses attendance at his disciplinary hearing thereby not affording him a full and fair hearing before the executive committee" which of course reflects exactly the wording which we have recited earlier.

[16]The Certification Officer dismissed both complaints. He dealt with them as follows. It was plain that complaint 8, in part, related to the entire period of March to October 2000, when a quorum of less than five was being adopted, on the applicants' case, by the Executive Committee, at least in part because of the peculiar circumstance relating to Mr Tyson. But for the purpose of the material part of the Certification Officer's decision, and our appeal, we concentrate only on the non-quorate nature of the disciplinary hearing, on the Applicant's case, and that, as it turns out, does not depend on any general issue of quorum, but only on the fact that it was delegated to a sub-committee of three, rather than being dealt with by an entire Executive Committee with the relevant quorum of five.

[17]The Certification Officer sets out the Applicant's case very shortly, in paragraph 2.83, it refers to the inquorate nature of the EC meetings; at 2.84, he refers to the disciplinary hearings held with less than five members of the EC present. The Union's response is then set out:

"2.85 The Union argued that there was (and is) no prohibition on members of the EC meeting in the absence of a total of five of them. It was argued for the union that, with three of the eight members suspended"

That of course included Mr Carrigan himself "and subsequently expelled, …. it was inevitable that meetings would and did take place with less than five members present. This, the union stated, happened from time to time. In those circumstances, I was informed, it was arranged for any decisions made at meetings with less than five members present to be ratified at full meetings of the five members at later dates. It was therefore argued that there was no breach of this rule, as in effect, when less than five members were present, they met as a sub-committee whose decisions were ratified by the EC at meetings where there was a quorum. 2.86 It was further stated that this situation was reported to and approved by the Annual Delegates Conference."

[18]The Certification Officer said as follows:

"2.87 I decline to make the declaration sought in respect of this alleged breach. The union were faced with an unusual and difficult situation with three of the eight members of the EC suspended. A number of meetings of the EC were subsequently held with all five remaining officers present but it was inevitable that, at times, less than five would be present. 2.88 I believe there is nothing in the union's rules to prevent inquorate meetings being held, and decisions made, as long as those decisions are subsequently authorised at a quorate meeting of the EC. It was established in evidence that the union has a long history of operating through small sub-committees. It is for these reasons that I decline to make the declaration sought."

[19]Complaint 12, to an extent, goes over the same ground by reference to Mr Ballard's complaint, and Mr Carrigan, of course, had the same complaint, namely that his disciplinary hearing was before a sub-committee of three. In 3.17, Mr Carrigan is quoted as follows:

"Mr Carrigan in quoting the same rule argued that his disciplinary hearing was unjust because that rule stated he was entitled to question the union's witnesses and had not been given the opportunity to do so. Also that he had not been allowed witnesses in his defence and that the proceedings had been unconstitutional in that only three members of the EC had been present and that no witnesses had been called, thus denying him the opportunity to defend himself."

The Union's response is set out, at 3.18:

" The Union argued that the disciplinary hearings of both Mr Ballard and Mr Carrigan had been conducted fairly and in accordance with rule. The hearings of both men, following a decision of the Executive Committee, had been before sub-committees of three members of the EC. Both hearings have, after their conclusions, been reported to full meetings (of the remaining members) of the EC who had ratified the actions taken. The union further argued that it would have been unfair to the complainants (facing the disciplinary hearing) if Mr Tyson and Mr Madden had been members of the disciplinary panel. This was because the behaviour of the three charged members had been a major factor in the original resignation of Mr Tyson and Mr Madden, both from the EC and from the post of President of the union. 3.19 The union denied Mr Carrigan's hearing was in any way unfair. The union informed me that Mr Carrigan had been given the opportunity to produce witnesses in his defence but had not done so on the day and time required."

He then gave the reasons as follows:

"3.20 I am satisfied that the union's EC under rule 16(16) had the power to determine any issue upon which the rules were silent. The EC, faced with the suspension of three of its eight members, decided to operate with a number of sub-committees. It did so (these included sub-committees to conduct the disciplinary hearings of Mr Ballard and Mr Carrigan). It is not uncommon for unions to set up sub-committee and to delegate responsibility. 3.21 Both sub-committees in due course reported their decisions back to full meetings of quorate meetings of the (remaining) five members of the EC who ratified the actions taken and the decisions reached."

He was therefore satisfied that:

" both hearings, conducted before three members of the EC as sub-committees of the EC, were conducted within rule."

[20]Then, so far as Mr Carrigan's separate complaint about witnesses is concerned, in 3.23, the Certification Officer said as follows:

"I find also that, at his disciplinary hearing, Mr Carrigan was given the opportunity for witnesses, on his behalf, to attend. He opted not to produce those witnesses on the day and time necessary. I find he was given the opportunity but did not take it (for which he offered to me his own explanations). It is not the union's responsibility at a disciplinary hearing to produce the witnesses the charged member may want present in his defence. That responsibility lies with the charged member, in this case Mr Carrigan. Other aspects of Mr Carrigan's comments to me, in presenting his complaint of a breach of this rule, could be the subject of any appeal he may wish to bring against the union's decision to expel him. I have not therefore reported his comments in these reasons."

[21]The appeal to this Tribunal by Mr Carrigan, as we have indicated, ranged over a number of areas, but was limited to those two complaints by a preliminary hearing. Before us today, the argument has been limited to an even smaller ambit, but before we deal with what was before us, we should deal with an application that was made by Mr Kellar, Counsel on behalf of the Appellant, to amend the Notice of Appeal. He sought to allege two further breaches of the Rules:(1) that there was a breach of Rule 29(3) by virtue of inadequate details of the charges being given, and

(2) a breach of Rule 29(6) by virtue of the fact that the Appellant had no representation at the hearing.

[22]These complaints were not put before the Certification Officer. As we have indicated, the issues that were before him were agreed, although of course, Mr Carrigan was not, at any rate at the earlier stage, represented. They were not in the Notice of Appeal against the Certification Officer's decision, which made no finding as to them because they were not before him, and they were not consequently permitted to proceed when the preliminary hearing slimmed down the contents of the Notice of Appeal even further. Mr Carrigan nevertheless pursued, notwithstanding a good deal of discouragement from the Bench, his application to amend, which was manifestly, if I may say so with respect, hopeless. It is right to say that Mr Carrigan did, as we have recited, complain about the fact that due to his own representative letting him down, he had no representation at the hearing, but he did not pursue that complaint beyond the first letter of 18 October; he did not turn it into a complaint when he made his application to the Certification Officer, nor seek to incorporate it when the issues were listed before the Certification Officer, or at the hearing before him.

[23]So far as the lack of detail of the charges is concerned, we have not seen the charges, although we understand that if any complaint can be made, it would be that they would rather be too prolix than too short. The most we have seen is a complaint by the Appellant at an earlier stage, which we have not recited, that the charges were read out too quickly. That is, apparently, the basis upon which Mr Kellar now founds his case, that they were too short. There is nothing in the case, and even if there were, like the other allegations, it was not pursued before the Certification Officer, and it is far too late now to add it to the pile.

[24]We turn then to the matters which were before the Certification Officer and have been argued before us. The main matter relates to the composition of the Executive Committee.

[25]At an earlier stage, some reference was made to the question as to whether the Executive Committee could be regarded as quorate, in the unusual circumstances, even though there may have been less than five, or, notwithstanding that it was not quorate, whether this could nevertheless not be challenged by the Appellant, either because of the rule in Foss -v Harbottle or because the actions were ratified by the full assembly of members. There was also reference made, as we have recited, to the fact that, in any event, two of the five would have been, at any rate arguably, parti pris, such that the Respondents thought it inappropriate to ask them to sit.

[26]None of those matters were pursued before us today in any substance and in any event, it appears to us that they would not have succeeded. It could not have been successfully asserted, in our judgment, that an unquorate executive committee would be sufficient, and ratification by the full members, or the rule in Foss -v- Harbottle, might be an answer if someone is making a complaint of contractual breach, qua member of the union, alleging unconstitutionality, but could be no answer to a claim by someone, although he may be a member, who is the alleged victim of the alleged unconstitutional conduct, where it relates to matters of discipline and expulsion. So far as the constitution of the sub-committee is concerned, if the Respondents had been concerned about the two men sitting, they could and should have approached the Appellant to see whether he had any particular objection to their sitting, or whether there could be an agreed constitution for the Tribunal, but it could be no ground for sitting with an unconstitutional committee, of itself.

[27]The issue that has been put before us today has been a much simpler and more straightforward case by Mr Langstaff QC, and it is this: by reference to the finding by the Certification Officer that there was evidence to justify the fact that the Union can manage its affairs by sub-committee, consequently, the existence of sub-committees becomes, as a result of custom and practice, incorporated into the Rules, and into the contract between the union and its members, including the Appellant, as a result of that custom and practice. Thus operation by the Executive Committee through the sub-committee is legitimate. Rule 16(16) authorises the Executive Committee to determine anything upon which the Rules are silent; the Rules are silent as to the appointment of a sub-committee, and consequently, there is nothing to prevent a sub-committee dealing with matters of discipline. When looking at 29(6) in those circumstances, and indeed, the other references in Rule 29 to the hearing being before the Executive Committee, for example 29(4) and 29(5), reference to the Executive Committee must import not only a reference to a quorate executive, but an executive committee acting as it is otherwise entitled to do, including acting by a sub-committee. Thus, in those circumstances, the resolution which led to the setting up of the sub-committee which was not, as it turns out, specific to this Appellant, but could have been, was simply the Executive Committee doing that which it was not prevented from doing, and when the hearing took place it was a hearing before the Executive Committee acting by a lawfully delegated sub-committee.

[28]Mr Kellar, upon whom we did not substantially call because of his persuasive Skeleton Argument and Notice of Appeal on his client's behalf, does not accept that. His submission is a simple one: under 29(6) the member is entitled to a full and fair hearing before the Executive Committee - he did not get one. The word "before" has a well-established meaning; in Latin, which, over the years, the Courts have been accustomed to use, the word could be "coram" which would be translated as "being in the presence of", but quite apart from any legalistic interpretation, by reference to Latin or otherwise, it is clear, as indeed Mr Langstaff QC himself urged upon us by reference to Jakes -v- AEW

[1986] ICR 683

union rules must be interpreted not legalistically, but in the way in which an ordinary union member would expect them to be construed.

[29]It appears clear to us, and of course we have the benefit, constituted as we are of members of what at first instance may be called the "Industrial Jury" sitting, that a union member faced with a disciplinary charge, and with a rule which promised him a hearing before the Executive Committee, would expect just that, and would not expect a hearing before one, two or even three people who might have matters delegated to them by the Executive Committee, albeit that in many other circumstances sub-committees are appropriate. It appears to us that, on that ground alone, Rule 16(16) is not complied with, because the Rules are not silent for they provide, by 29(6), as we construe it, that a disciplinary matter must be heard before the Executive Committee, and thus that would be an exception to the powers otherwise available, untrammelled by 16(16), including the power to delegate the running of affairs to a sub-committee.

[30]There is a further reason why we conclude that this was not a hearing before the Executive Committee within 29(5). By the terms of the resolution, the sub-committee was not appointed instead of the Executive Committee to carry out the hearing, but - and we return to the terms of the resolution - the sub-committee was created to deal with matters of discipline, and report back to the Executive Committee. It is clear, therefore, that what was occurring was someone else other than the Executive Committee, namely a sub-committee, was to hold the hearing at which the Appellant was present; and the process was not completed until the sub-committee reported back, at an occasion when the Appellant was not present and had no opportunity to make representations, and on that subsequent occasions, the process was completed by the ratification, as it turns out, or, of course, if it had so turned out, possibly rejection or variation, of the prior recommendation or determination by the sub-committee. For that reason, too, we are satisfied that this was not a hearing before the Executive Committee. In those circumstances, we are satisfied that there was a breach of the Rule and that this was not a hearing before the Executive Committee, and thus the Union took disciplinary action without the sanction of the Rules.

[31]The further ground that was urged upon us today by Mr Kellar was by reference to the balance of Rule 29(6), in relation to the fact that the Appellant did not have the opportunity of questioning the society's witnesses, contrary to the terms of Rule 29(6). It is right that the Appellant complained about that in the early correspondence, including the 18 October 2000 letter, as we have recited. It is also right that before the Certification Officer, he similarly so stated in the passage which we have quoted in paragraph 3.17 of the Certification Officers's judgment, but it is also clear that the issue as formulated did not in terms clearly reflect that case. The issue, as we have recited, was in fact formulated by the Certification Officer from his understanding of the case, but he gave an opportunity for comment to the Appellant, and in giving particulars of the case at that stage, the Appellant referred only to evidence that he would have liked to have brought, not to evidence that he would have liked to have cross-examined on. It is plain that the Respondents believed, because we have quoted their response of 5 December 2000, that they were only facing a case that the Appellant was not given the opportunity to produce his own witnesses, and it was that case which, alone, they appear to have answered, because of their understanding of the issue in the hearing before the Certification Officer, as recorded by the Certification Officer at paragraph 3.19.

[32]It is the fact that Mr Carrigan did not have the opportunity to cross-examine witnesses because none were called, but, in our judgment, this was not a complaint which was firmly before the Certification Officer, and although he recited the statement made to him by Mr Carrigan, it is plain that the Respondent did not believe that it was before him, and as we have recited by reference to 3.23 of the Certification Officer's judgment, he did not reach a conclusion on that aspect. The fact that he did not reach a conclusion is, of course, the matter of which Mr Kellar is complaining, but we do not conclude that the Certification Officer erred in law in failing to reach a conclusion when, in our judgment at any rate, the matter was not clear before him at all, and one of the parties before him apparently did not address the issue.

[33]However, as we indicated in argument to Mr Kellar, as we are concluding that the entire hearing was held in breach of the Rules, it does not appear to us to matter that in some respects the hearing which thus took place, in breach of the Rules, was unsatisfactory, and we do not conclude it would, in those circumstances, have been necessary in any event for a further declaration to be made by the Certification Officer, even had the matter been firmly before him, because he would have concluded, as we now do, by making a declaration, that the hearing itself, on 6 December 2000, was in breach of the Rules. To that extent, therefore, we allow this appeal.

[34]The matter must be remitted for the Certification Officer's consideration of what further steps require to be taken; plainly we are in no position to conclude whether it is or not appropriate to make any enforcement Order. On that, the Certification Officer had no evidence, and did not consider the point, because he did not reach that aspect of his conclusions, and we are in an even less good position than the Certification Officer for that reason, and we consequently leave the question of remedy consequential upon the declaration which we make to the Certification Officer.