GMB v MR R STOKES [2004] UKEAT 0769_03_2301

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0769_03_2301Case No Appeal No. UKEAT/0769/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GMBAPPELLANTMR R STOKESRESPONDENT
Before
Mr Justice Rimer Mr B Beynon Mr S YeboahDate 23 January 2004
[1]APPEARANCES For the Appellant MR BRIAN LANGSTAFF QC And MR THOMAS COGHLIN (of Counsel) Instructed By: GMB Legal Department 22-24 Worple Road London SW19 4DD For the Respondent MR THOMAS LINDEN (of Counsel) Instructed By: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST THE HONOURABLE MR JUSTICE RIMER : This is an appeal by GMB, a trade union ("the Union"), against three elements of a decision of Mr David Cockburn, the Certification Officer ("the Officer"), made on 26 September 2003. They are(i) the Officer's declaration that the Union had acted in breach of section 47(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") in unreasonably excluding the respondent, Robert Stokes, from standing as a candidate in the Union's election in 2003 for the position of Deputy General Secretary,(ii) his further declaration that the Union breached rule 15(3) of its rules by reason of its National Returning Officer's disqualification of Mr Stokes as such a candidate, and(iii) his orders requiring the election to be treated as void and of no effect, the vacation of office forthwith by the person elected as Deputy General Secretary and the holding of a further election. In short, the issues raised by the appeal relate to the Officer's conclusions as to the validity of the Union's 2003 election for the post of Deputy General Secretary. Before coming to the issues, we must first outline the relevant Union rules and the statutory background. The Union's constitution and rules[2]The Union is the product of the amalgamation of the General Municipal, Boilermakers and Allied Trades Union and the Association of Professional, Executive, Clerical and Computer Staff. It is governed by a written constitution containing its governing rules, the current version including amendments adopted in July 2001.[3]Rules 1 to 4 are in a section headed "Constitution." Rule 1.1 gives the Union its name, and rule 1.3 provides that "Subject to any decisions made from time to time by the Congress or the Central Executive Council" it shall be administered according to the Core Rules, supplemented by the Rules in the Appendix and Schedule. Rule 2 sets out the Union's objects. Rule 3 provides that "No new Rule shall be made, or any of these Rules altered, amended or rescinded, unless agreed to by a majority vote at Congress (Ordinary and/or Special), or by a ballot of members."[4]Rules 5 to 7 are in a section headed "Membership." Rule 5 identifies who may be members of the Union and includes powers for their suspension and expulsion. Rule 6 provides a complaints procedure for members.[5]Rules 8 and 9 are in a section headed "Congress." Rule 8.1 provides that "The supreme authority of the Union shall be vested in the Congress (Ordinary or Special) composed of delegates from the Regions of the Union …." An "Ordinary Congress" is held in alternate years and a "Special Congress" may be held at such time as the Central Executive Council shall determine. By rule 8.2, each Branch of a Region may elect a delegate to represent the Region at the Congress, and rule 8.3 sets out a voting procedure for their election. Rule 8.5 lists those who shall attend the Congress as ex officio delegates with the right to speak but not to vote. The list is long, and includes the members of the Central Executive Council, the General Secretary and Treasurer, and the Deputy General Secretary. Rule 9 deals with the business of the Congress, which includes "the consideration and determination of internal questions of policy affecting the general, industrial, political or social welfare of the members." Rule 9.3 provides:
"3. The Congress by a majority vote shall have power to rescind, alter and add to any of these rules. Consideration of amendments to rules shall be restricted to the Ordinary Congress held in 1999 and thereafter to every second Ordinary Congress. The Central Executive Council shall, nevertheless, have power to submit to any Congress (Ordinary or Special) amendments to rules."
[6]Rules 10 to 13 are in a section headed "Central Executive Council" ("the CEC"). Rule10.1 provides that "The government of the Union and the conduct of trade disputes shall be vested in a [CEC]." Rule10.2 provides that the CEC shall consist of voting members, being elected representatives of various identified groups and including the General Secretary and Treasurer, and the Deputy General Secretary. The CEC ordinarily meets every two months, but can meet more often. Rule 10.4 enables it to form committees to which it can delegate its functions and powers. Rule 10.7 empowers the CEC to:
"… exercise all and any such powers and perform all such acts, duties and obligations as may be necessary to attain or are incidental to or conducive to the attainment of the objects and general interests of the Union whether such powers, duties or obligations are specifically mentioned in these rules or not…."
[7]Rule 10.14 provides that the decision of the CEC is binding on all Union members. Rule 10.16 provides that "Any matters not provided for in these Rules shall be decided by the [CEC]." Rule 11 deals with elections to the CEC. Rules 12 and 13 deal with the election of the President and Vice-President of the Union.[8]Rules 14 to 19 are in an important section headed "Full-time Officials and Office Holders." Rule 14 sets out general provisions relating to the office of General Secretary and Treasurer, and rule 14A does likewise in relation to that of Deputy General Secretary. Rule 15 is of central importance and is headed "Election of General Secretary and Treasurer, and of Deputy General Secretary." It provides:
"1. This rule shall apply to the election of the General Secretary and Treasurer, and to the election of the Deputy General Secretary, each of whom shall hold office for a period of five years from taking up office. 2. Nominations shall be sought from the Branches of the Union by the [CEC] six months before the term of office expires, or forthwith in the event of a vacancy. Nominations shall be sent by Branches to a Returning Officer appointed by the [CEC]. 3. No member shall be eligible to stand as a candidate in an election under this rule unless the [CEC], on receiving his/her nomination, is satisfied that: a. he/she is qualified under these rules to stand for election to the office and b. he/she is capable of discharging efficiently the duties of the office, having particular regard to his/her experience within the union including: (i) his/her length of service as an employee of the union and/or (ii) his/her period of office in an office or offices under these rules Only candidates who have so satisfied the [CEC] as to their qualifications and capability shall be validly nominated. 4. The organisation and conduct of elections under this Rule shall be in accordance with by-laws issued by the [CEC]. By-laws made under this rule may specify whether failure to comply with any and if so which by-laws shall disqualify a candidate from standing for election. The [CEC] may amend or withdraw any by-law as it thinks fit. 5. Nothing in this rule shall require an election to take place if the holder of the office a. having been elected to that office under this rule or its predecessor, and b. having been a full-time employee of the Union for a period of at least ten years would otherwise reach retirement age within five years from the expiry of his/her current term of office. 6. Elections under this rule shall be by secret ballot."
[9]The positions of General Secretary and Deputy General Secretary were due to be vacated in 2003 by the then current incumbents. They needed to be filled, and so the Union conducted postal ballots for the election of new officer holders. The Officer found that the CEC had, under rule 15.4, issued by-laws for the purposes of that election. They covered matters such as the date by which nomination forms were to be returned by the branches, the personal details to be provided by nominees (including his age on 31 December 2002), the date by which the details were to be provided, the restrictions on canvassing, the date for assessing financial membership and the date by which ballot papers had to be returned. They stated that failure to comply with certain of them would result in the nominee being disqualified.[10]The Officer also found that, by the time of the proposed election, potential nominees for election to the post of Deputy General Secretary had been subject to a further provision, one expressed in various Union documents as follows:
"No member should be nominated for the position of Deputy General Secretary who, because of impending retirement, would be unable to serve a sufficient time of office in that capacity."
Like the Officer, we will call that "the Precursor Provision." He found that it had been in place since about 1985, had featured in the material issued for the elections of the Deputy General Secretary in 1990 and 1996 and that it had become a rule of the Union by custom and practice. It was of central importance to the issues before him.[11]The Officer also found that the returning officer (whom, like him, we will call the National Returning Officer, and abbreviate to "NRO") referred to in rule 15.2 had in practice a wider role than the rule might suggest, including the duty to satisfy himself that a nominee for the position of Deputy General Secretary was qualified to stand for election to office. He said:
"8… Mr O'Hara [the Union's National Legal Officer and a former NRO] gave evidence that in practice the NRO made all decisions to disqualify nominees under the rules and by-laws if those decisions were mechanical ones, taken by reference to ascertainable facts. Any decision to disqualify which involved the exercise of a discretion was taken by the CEC. Accordingly, a decision to disqualify a candidate on the grounds that he or she would be unable to serve 'a sufficient time' in office before retirement, under the Precursor Provision, was to be taken by the CEC."
[12]Rule 18, headed "Qualifications for Office and Definition of Officers", provides:
"1. The first qualification of any member seeking election to any of the offices named in this Rule shall be that s/he has paid 53 consecutive weekly contributions and is fully financial (as defined in Rule 47.5) at the date of nomination and election. 2. The second qualification shall be that during the whole tenure of any office herein specified the holder shall pay the full amount of his/her appropriate Union contributions in accordance with Rules 47 and 48: [a long list of offices follow, including those of General Secretary and Treasurer, and Deputy General Secretary]. 3. The third qualification for any member seeking election to the [CEC] under Rule 11 shall be that at the date of nomination and election s/he is a member of his/her Regional Council. This qualification shall not apply to any member seeking election to the post of General Secretary and Treasurer or Deputy General Secretary. 4. Except that members of new Branches shall, within the said new Branches, be eligible for the offices of Branch President, Branch Secretary, Branch Equality Officer, Branch Youth Officer, Branch Member Auditor or Collecting Steward. 5. An elected official is one who has been elected to a whole-time permanent position by a vote of the members of the Branches within a Region, or by the votes of members of all the Branches of the Union. 6. No person who has, or who in the preceding five years has had, a written contract of employment with the Union, or who is in receipt of a pension from the Union shall be eligible for election as a delegate to Congress (Rule 8); as a delegate to a Regional Council (Rule 20 or Rule 21); or as a delegate to a National or Regional Delegate Conference (Rule 68) or Section Conference."
[13]We refer, for completeness, to Rule 47.5, mentioned in Rule 18.1. It is in a section headed "Contributions" and provides, so far as material:
"5. In these Rules 'a financial member' is a member who is not more than six weeks in arrears with payment of his/her contributions; 'a full financial member' is a financial member who has been a member for at least six months and has paid 27 consecutive weekly contributions. In each case, payment of contributions means payment of the full amount of the member's appropriate contribution rate as provided in these Rules. …"
[14]The Officer also found as facts as follows:
"9. Sometime before December 2002 a draft pack of the pro forma documents to be used in the elections in question was prepared. A meeting then took place between the retiring General Secretary and Mr O'Hara in the presence of Mr Short [the NRO for the forthcoming election] to discuss the entire pack of papers and to make sure that everything was, in the evidence of Mr O'Hara, 'neat and tidy'. The General Secretary identified that there was a weakness in the Precursor Provision. He considered that the requirement to serve 'a sufficient time' was too vague and might give rise to difficulties in its application. He proposed, and it was agreed, that this expression should be amended so that the corresponding requirement for these elections should be expressed as follows: 'No member should be nominated for the offices of General Secretary and Treasurer, or Deputy General Secretary who, because of impending retirement, would be unable to serve a full term of 5 years in office.'"
Like the Officer, we shall refer to this provision as "the Impending Retirement Provision." It was also of central importance to the issues before the Officer.[15]Rule 63 is headed "Senior Officers Electoral Appeals and Disputes". It provides a complaints procedure in relation to disputes arising from any election for General Secretary and Treasurer or Deputy General Secretary. Complaints are made to a Regional Elections Committee, with a right of appeal to the CEC. The 1992 Act: the statutory provisions relating to Union elections[16]Chapter IV of the 1992 Act is headed "Elections for Certain Positions". Sections 46 and 47 provide, so far as material:
" Duty to hold elections 46. Duty to hold elections for certain positions (1) A trade union shall secure – (a) that every person who holds a position in the union to which this Chapter applies does so by virtue of having been elected to it at an election satisfying the requirements of this Chapter, and (b) that no person continues to hold such a position for more than five years without being re-elected at such an election. (2) The positions to which this Chapter applies (subject as mentioned below) are – (a) member of the executive, (b) any position by virtue of which a person is a member of the executive, (c) president, and (d) general secretary; and the requirements referred to above are those set out in sections 47 to 52 below. (3) In this Chapter 'member of the executive' includes any person who, under the rules or practice of the union, may attend and speak at some or all of the meetings of the executive, otherwise than for the purpose of providing the committee with factual information or with technical or professional advice with respect to matters taken into account by the executive in carrying out its functions. … (6) The provisions of this Chapter apply notwithstanding anything in the rules or practice of the union; and the terms and conditions on which a person is employed by the union shall be disregarded in so far as they would prevent the union from complying with the provisions of this Chapter. Requirements to be satisfied with respect to elections 47. Candidates (1) No member of the trade union shall be unreasonably excluded from standing as a candidate. (2) No candidate shall be required, directly or indirectly, to be a member of a political party. (3) A member of a trade union shall not be taken to be unreasonably excluded from standing as a candidate if he is excluded on the ground that he belongs to a class of which all the members are excluded by the rules of the union. But a rule which provides for such a class to be determined by reference to whom the union chooses to exclude shall be disregarded."
Further facts found by the Officer[17]The CEC held a meeting on Tuesday 3 December 2002, adopted the timetable and the by-laws for the 2003 elections, and appointed Mr Short as the NRO. We have related how, at a meeting held in December 2002, the retiring General Secretary, Mr O'Hara and Mr Short introduced the Impending Retirement Provision by way of a purported amendment of the Precursor Provision. The by-laws contained no reference to this new provision (paragraph 9 of the Officer's decision).[18]Later in the same week, circulars were sent to all branches inviting nominations for the positions of General Secretary and Deputy General Secretary. The circular advised of the need for the CEC, under rule 15.3, to be satisfied in respect of each nominee that he or she was qualified in accordance with rule 18 and capable of discharging efficiently the duties of office. In addition, under the heading "Other Matters", the circular set out the Impending Retirement Provision.[19]Mr Stokes was nominated as a candidate for election as Deputy General Secretary. He was born on 5 March 1947 and so was, by December 2002, some three months short of his 56 th birthday. The Officer found that the age of compulsory retirement from office as Deputy General Secretary was 60. The Union wrote to Mr Stokes on 15 December 2002 informing him of his nomination. It enclosed three documents:(i) the election timetable,(ii) the by-laws, and(iii) a document headed "Information for Nominees", which set out rule 15.3, referred to the rule 18 financial requirements and set out the Impending Retirement Provision. Mr Stokes did not receive this letter, but did receive the copy (with the same enclosures) sent to him on 20 January 2003.[20]On 5 February 2003, Mr Stokes submitted his personal details form to the NRO. He disclosed his age as at 31 December 2002 as 55. On 6 February 2003, the NRO wrote to him saying that he had disqualified him from standing in the election. He set out the terms of rule 15.1 (which provides that "each of [the General Secretary and the Deputy General Secretary] shall hold office for a period of five years from taking up office") and referred to the Impending Retirement Provision. The NRO's point was that, because of Mr Stokes' age, he would not be able, if elected, to serve a full term of five years before his compulsory retirement at 60.[21]Mr Stokes wrote to the NRO on 13 February 2003, protesting about his disqualification. The NRO rejected the protest, but advised Mr Stokes of his right to make a complaint under rule 63. On 14 February 2003, Mr Stokes made a complaint to his Regional Secretary for consideration by the Regional Elections Committee.[22]On 18 February 2003, the CEC met to discharge its functions in relation to the election under rule 15.3, namely to satisfy itself whether the candidates were "qualified" and "capable". The CEC members had a briefing paper which set out their responsibilities and the procedure to be adopted. The Impending Retirement Provision was set out in the briefing paper, but it was not drawn to their attention and there was no discussion of it. In accordance with previous practice, the CEC considered only those nominees who had not already been sifted out by the NRO. They did not, therefore, consider Mr Stokes' nomination. The General Secretary reported that a disqualified nominee had lodged an appeal, but gave no further details.[23]On 24 February 2003, the clerk to the Regional Elections Committee wrote to Mr Stokes and informed him that the Committee had considered his complaint and had recommended that he be disqualified but that the NRO had had no authority to disqualify him. It referred the matter to the CEC for a final decision. On 25 February 2003, Mr Stokes appealed to the CEC. His appeal was heard by the appeals committee and was dismissed on 4 March 2003.[24]On 12 March 2003, Mr Stokes made a number of complaints to the Officer against the Union, alleging a breach of the 1992 Act in respect of the election processes and breaches of the election rules.[25]Voting in the election took place between 21 March and 14 April 2003. The result was declared on 15 April 2003. There were six candidates for the position of Deputy General Secretary. The candidate with the highest number of votes secured the position, and took up office on 18 May 2003. The jurisdiction of the Certification Officer[26]Sections 54, 55 and 108A of the 1992 Act provide, so far as material: "54. Remedy for failure to comply with the requirements: general(1) The remedy for a failure on the part of a trade union to comply with the requirements of this Chapter is by way of an application under section 55 (to the Certification Officer) or section 56 (to the court).(2) An application under those sections may be made – (a) by a person who is a member of the trade union (provided, where the election has been held, he was also a member at the time when it was held), or (b) by a person who is or was a candidate at the election; and the references in those sections to a person having a sufficient interest are to such a person. … 55. Application to the Certification Officer (1) A person having a sufficient interest (see section 54(2)) who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the Certification Officer for a declaration to that effect. (2) On an application being made to him, the Certification Officer shall – (a) make such inquiries as he thinks fit, and (b) … give the applicant and trade union an opportunity to be heard, and may make or refuse the declaration asked for.(3) If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply.(4) Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall specify those steps in the declaration.(5) Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings. (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements – (a) to secure the holding of an election in accordance with the order; (b) to take such other steps to remedy the declared failure as may be specified in the order; (c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future. The Certification Officer shall in an order imposing any such requirement as is mentioned in paragraph (a) or (b) specify the period within which the union is to comply with the requirements of the order. … 108A Right to apply to Certification Officer (1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect, subject to subsections (3) to (7). (2) The matters are – (a) the appointment or election of a person to, or the removal of a person from, any office; (b) … (c) the balloting of members on any issue other than industrial action; … 108B Declarations and orders (1) The Certification Officer may refuse to accept an application under section 108A unless he is satisfied that the applicant has taken all reasonable steps to resolve the claim by the use of any internal complaints procedure of the union. (2) If he accepts an application under section 108A the Certification Officer – (a) shall make such enquiries as he thinks fit, (b) shall give the applicant and the unions an opportunity to be heard, (c) shall ensure that, so far as reasonably practicable, the application is determined within six months of being made, (d) may make or refuse the declaration asked for, and (e) shall, whether he makes or refuses the declaration, give reasons for his decision in writing (3) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or both of the following requirements – (a) to take such steps to remedy the breach, or withdraw the threat of a breach, as may be specified in the order; (b) to abstain from such acts as may be so specified with a view to securing that a breach or threat of the same or a similar kind does not occur in future. … Mr Stokes' complaints to the Officer were under sections 55 and 108A. The Officer held a hearing into the complaints on 27 August 2003. The first complaint[27]Mr Stokes' first complaint was that, in breach of section 47(1) of the 1992 Act, and on about 6 February 2003, he was unreasonably excluded from standing as a candidate for the position of Deputy General Secretary. We preface our summary of the main arguments before the Officer by making the following points, which we understood to be common ground before us and, we presume, before the Officer. First, rule 15.1 imposed a requirement, or at least reflected an expectation, that candidates for election to the post of Deputy General Secretary must be of such an age as to enable them, if elected, to serve a full five-year term. Second, rule 15.1 would, by itself, have disqualified Mr Stokes from standing for election, since because of his age he could not serve a full five-year term. Third, the Precursor Provision had, by custom and practice, become a Union rule. Fourth, its effect was to qualify rule 15.1 so as to give over-age nominees the chance of standing for election. It did not automatically entitle them to do so. But it did entitle them to put to the CEC their case so to stand, including their case that, if elected, they could serve a "sufficient time" in the post. Fifth, the Impending Retirement Provision purported to cut down this effect of the Precursor Provision by providing that no one should be nominated as a candidate if, because of his age, he could not serve a full five-year term.[28]Mr Stokes' point was that the Impending Retirement Provision was unconstitutional. It formed no part of the Union rules, nor had it been validly introduced as a by-law. It had not even been considered by the CEC even if, which he disputed, the CEC had the power to make changes to the eligibility criteria. Accordingly, no regard should have been paid to it by anyone, and regard should instead have been had to the Precursor Provision. As at 31 December 2002, Mr Stokes was just over two months short of 56. He submitted that, if elected, he could have served in office for four years and three months before his compulsory retirement, which he claimed was "sufficient time" within the meaning of the Precursor Provision, or at least might have been held by the CEC to be so. That last submission appears to have assumed that the term of office would run from early December 2002, whereas in fact it would only run from or after about April 2003.[29]The Union submitted(i) that the Impending Retirement Provision had become a Union rule, having been impliedly ratified by the CEC both by being in the briefing paper at the CEC meeting on 18 February 2003 and by being considered by the CEC when dealing with Mr Stokes' rule 63 appeal; alternatively(ii) that the Impending Retirement Provision was merely an evolution of or improvement to the Precursor Provision, and had by that route become a Union rule;(iii) that it was a rule which excluded as candidates a class of members (including Mr Stokes) above a certain age, so that the exclusion could not be said to have been unreasonable within the meaning of section 47(1), since it fell within section 47(3); alternatively(iv) that even if it was not a rule within section 47(3), it could still not be said that Mr Stokes had been unreasonably excluded for the purposes of section 47(1). His exclusion fell within a range of reasonable responses that the Union could have taken, and the Impending Retirement Provision introduced a reasonable criterion. It was reasonable for the Union to ensure that its officers held office for a significant period, and repeated elections were expensive.[30]In paragraph 27, the Officer rejected the contention that the CEC had, on either suggested occasion, ratified the Impending Retirement Provision. He found also that it had not been otherwise introduced as a valid rule of the Union, the power to make or amend the Union rules resting with Congress, not with the CEC. He said that it may have introduced more certainty than the Precursor Provision, but it did so by excluding more potential nominees than previously.[31]In paragraph 28, the Officer directed himself that, in determining whether Mr Stokes' exclusion as a candidate was "unreasonable" for the purposes of section 47(1), the Union could have a range of reasonable responses to a specific concern regarding the eligibility of candidates, but he said that "The question I must ask myself … is simply whether [Mr Stokes] was unreasonably excluded from standing for office." He then said, in paragraph 29:
"29. I also accept the Union's submission that the Impending Retirement Provision is a measure which could reasonably be adopted by the Union. The Union had a legitimate interest in considering whether a candidate would be able to serve his or her full term before compulsory retirement and the Union was entitled to devise an exclusion which reflected those concerns. Issues of stability and cost are matters which the Union is clearly entitled to take into consideration. Both the Precursor Provision and the Impending Retirement Provision were means of addressing this concern and in my judgment both were measures which were within the range of responses which a reasonable Union could have devised to meet its legitimate concerns. I also accept the Union's good faith in amending the Precursor Provision to remove the uncertainty and subjectivity of having to determine what is 'sufficient time' and replacing it with a provision which is capable of precise and objective determination. It cannot therefore be said that [Mr Stokes'] exclusion was arbitrary or not based on principle. Furthermore, I accept the Union's submission that the Impending Retirement Provision was applied to all nominees in the General Secretary and [Deputy General Secretary] elections. Whether such a provision amounts to discrimination on the grounds of age is a matter which the Union would be entitled to take into consideration as a matter of policy but there is currently no legislation prohibiting age discrimination."
[32]The Officer then said (in paragraph 30) that he had, however, to consider all the circumstances of the exclusion, including(i) the reasonable expectations of members,(ii) the manner in which the excluding criterion was created and(iii) its relationship to the rules. He said that "None of these factors, taken individually or together, is necessarily decisive but each is relevant." He then considered each of these factors.[33]In paragraph 31 he found that, prior to the circularisation of branches in early December 2002, members would have considered the relevant criterion to be the Precursor Provision and would have been entitled to make plans in that expectation. He found that Mr Stokes could legitimately have expected that any further qualifying criteria would have been introduced through the Union's rule revision mechanism. The publication of the Impending Retirement Provision had not been preceded by any opportunity for discussion or argument at the CEC, let alone at branch level or Congress. He found (in paragraph 32) that the Impending Retirement Rule was "simply an executive decision; a decision taken at an informal meeting which had the effect of depriving a greater number of members than previously of their ability to stand for a Senior Officer Position." He then said this:
"33. The ability to stand as a candidate in an election for any of the positions in a union which are subject to a statutory election is an important aspect of membership. In many unions it will be an express or implied term of the rules. However, any such implied term may be subject to qualification by an express term or a prevailing implied term. The rules of this Union do not contain an express term giving members a right to stand as a candidate in Senior Office elections. They do, however, contain provisions restricting eligibility and imposing qualifying criteria. These provisions would not be necessary if members did not otherwise have the right to stand for election. More fundamentally, having regard to the nature of the Union as a democratic membership organisation, I find that the rules of the Union would have been understood by its members to have included such a right. Applying the language of one of the traditional tests of an implied term, I find that an officious bystander who suggested to those drafting the rules that it was necessary to have an express rule to this effect would have been firmly suppressed and told that members of course had the right to stand as a candidate. Accordingly I find that the members of the Union have an implied right under the rules to stand as a candidate for those positions which are subject to statutory election, subject to any legitimate qualification of that right."
[34]We add to those observations our view that rule 18 in fact makes it clear that members do have a right to stand for such elections. The Officer then said (in paragraph 34) that rules 15.3 and 18, the by-laws created under rule 15.4 and the Precursor Provision all created qualifications on the right of a member to stand for election, but that the executive decision which purported to amend the Precursor Provision by the introduction of the Impending Retirement Provision did not create, or validly create, any further or new qualifying provision. He went on to say:
"34. … Mr Coghlin submitted that the CEC had reserve powers in rule 10(7) to amend, so as to improve, a rule which existed by custom and practice. I reject this argument not only because of my finding that the Impending Retirement Provision was not ratified by the CEC but also because the power to make or amend rules rests with Congress, not the CEC, subject to any particular rule to the contrary. In my judgement, the rules and by-laws of the Union provide a code which stipulates the qualifications for standing for the Senior Officer Positions and the circumstances in which members can be disqualified. This code had been supplemented at some time after 1985 by the Precursor Provision taking effect by custom and practice. By denying [Mr Stokes] his right to stand as a candidate in the 2003 elections for the position of [Deputy General Secretary] on the grounds of a further criterion decided upon by executive action the Union denied him a right of membership."
[35]The Officer continued by saying (in paragraph 35) that whilst there may be circumstances in which it may be reasonable for a member to be excluded from standing otherwise than in accordance with the rules, the Union had not established any such circumstances in this case. There was no evidence, for example, that the Precursor Provision had previously created problems and needed urgent revision by executive action. He said that there was no evidence why the "tidying up" which was the aim of the Impending Retirement Provision:
"… could not have been done in accordance with the rules revision procedures set out in the rules, even though it was too late to make such an amendment for these elections. Accordingly, in my judgement the Union has not established that there was any sufficient reason for denying [Mr Stokes] his membership rights on this occasion."
[36]The Officer concluded by saying (in paragraph 36) that:
"36. … On the facts of this case, I find that it was not reasonable to exclude [Mr Stokes] on the basis of an executive decision taken at an informal meeting which had the effect of excluding him and no doubt other members from standing for election for a Senior Officer Position, contrary to the commonly understood qualifying criteria and in breach of rule."
The third complaint[37]The Officer found in favour of the Union in relation to Mr Stokes' second and fourth complaints, there is no appeal against those findings and so no need to refer to them. We can deal shortly with Mr Stokes' third complaint. His point was that he was entitled under the Union rules to have his right to stand as a candidate considered by the CEC under rule 15.3, whereas the Union had failed to honour that right, but wrongly delegated to the NRO the question of his entitlement to stand. The Union thereby breached his rights under rule 15.3. The Officer upheld that complaint. The claim for an enforcement order[38]Mr Stokes asked the Officer to make declarations and an enforcement order. The Officer made declarations that the Union had acted in breach of section 47(1) of the 1992 Act by unreasonably excluding Mr Stokes from standing as a candidate, and had breached rule 15.3. The Officer referred to sections 55(5A) and 108B(3) of the 1992 Act, and reminded himself that he was required to make an enforcement order unless he considered that it would be inappropriate to do so. He said:
"56 … [Mr Stokes] has been unreasonably deprived of an important right of membership. It cannot reasonably be said that [Mr Stokes] had no prospect of being elected or that the result of the election would have been the same had he been allowed to stand. In my judgement the only appropriate order to remedy the breach is one which enables [Mr Stokes] to contest a further [Deputy General Secretary] election."
[39]Paragraph 58 shows that he took into account that the cost of a further election would be about £240,000. He directed that the Union rules for the purposes of the new election were to include the by-laws which had been made under rule 15.4 and the Precursor Provision. Paragraph 5.3 of his order provided:
"5.3 the implied rule of the Union, referred to in the reasons to this decision as the Precursor Provision, shall apply to all nominees in the further election as if the term of office of the Deputy General Secretary were to have begun on 15 April 2003."
He set a period of six months for the result of the further election to be declared. The conduct of the new election is currently in progress. The appeal to this appeal tribunal[40]Mr Brian Langstaff QC and Mr Thomas Coghlin appeared for GMB and Mr Thomas Linden appeared for Mr Stokes. The bulk of Mr Langstaff's careful argument was directed to the Officer's declaration that the Union had breached section 47(1) and to the making of the enforcement order. Ground 1: unreasonable exclusion[41]Mr Langstaff accepted that the Precursor Provision qualified the otherwise unqualified rigour of rule 15.1. He recognised that it opened the chance of candidacy for election to those Union members who, if elected, could not serve a full five-year term: it entitled the CEC to find (under rule 15.3) in respect of any particular candidate that, even though he could not serve a full term, he could at least serve "a sufficient time" in office to entitle him to stand for election. Mr Langstaff recognised that the effect of the Impending Retirement Provision was to purport to negative that chance. He disclaimed the suggestion that it was a new rule of the Union, or therefore that this was a section 47(3) case. But he said that section 47(3) is merely a qualification to section 47(1), and that it shows that it does not follow that what might be characterised as an unconstitutional exclusion of a potential candidate must automatically be regarded as "unreasonable" for the purposes of section 47(1). He submitted that the Impending Retirement Provision did no more than clarify how the Precursor Provision was to be applied for the purposes of 2003 election. The essence of his submission was that the Precursor Provision and the Impending Retirement Provision were to be read together, with their combined sense being that the latter was proclaiming that, for the purposes of the 2003 election, nothing less than an ability to serve a full five-year term would be regarded as a "sufficient time". In summary, the Impending Retirement Provision was essentially in the nature of an interpretation of the practical operation of the Precursor Provision, being one(i) which was intended to create certainty out of the uncertainty inherent in the Precursor Provision,(ii) which was arrived at in good faith,(iii) which was not targeted at Mr Stokes or anyone else,(iv) which it was open to the CEC to adopt and(v) of which the CEC must have been aware and to which it never raised an objection. Mr Langstaff criticised the Officer's conclusion that the Impending Retirement Provision introduced a new exclusion: it was merely a practical and fair interpretation of the existing rules.[42]Whilst Mr Langstaff did not criticise the Officer's decision to carry out the balancing exercise he performed for the purpose of arriving at his decision on the section 47(1) point, he did criticise the manner of its performance. He referred in particular to paragraph 36 of the decision (which we have quoted), which he said reflected a mistaken understanding by the Officer that, under the Precursor Provision, Mr Stokes would have had the right to stand as a candidate, whereas at most he had a chance so to stand – that is, he at most had a right to have his claim to stand considered by the CEC under rule 15.3. He similarly criticised the Officer's point in paragraph 31 based on potential candidates' legitimate expectations under the Precursor Provision. He submitted that the Officer had committed errors of law in failing to have regard to the proper scope of section 47(1), in wrongly including in his balancing exercise the reasonable expectation of members (in particular, by regarding Mr Stokes as having had, under the Precursor Provision, a right to stand as a candidate), and in wrongly attaching weight to the view that the change of approach reflected in the Impending Retirement Provision should have been introduced by a rule change. He criticised the Officer for failing to pay proper regard to the sense of "sufficient time" in the Precursor Provision. His point was that the Officer should have built into his considerations the likelihood of Mr Stokes being allowed to stand as a candidate bearing in mind his age and the fact that he could, if elected, only serve for a term of about four years.[43]Mr Langstaff advanced his submissions most persuasively, but we were not persuaded that the Officer's decision on the section 47(1) point was in any way flawed. We are not satisfied that an argument was advanced to the Officer that the Impending Retirement Provision was merely in the nature of an ad hoc interpretation of the Precursor Provision solely for the purposes of the 2003 election rather than a straightforward purported amendment of it. But even if this is the correct way to look at it, the point does not appear to us to be of substance. The crucial point is that the interpretation (or purported amendment) exercise was carried out by three individuals – the retiring General Secretary, Mr Short and Mr O'Hara – who had no business to be performing it, and their claim to do so was manifestly unconstitutional. The Precursor Provision may have introduced an element of uncertainty in any particular case as to what would be a "sufficient time", but we presume that its introduction had been deliberate, motivated by the Union's desire to relax the inflexibility of rule 15.1 so as to open the opportunities of election to members who might be well fitted for the senior positions, but who, absent any such relaxation, would be excluded by age. The scheme of the rules under the Precursor Provision (or at any rate the practice of the Union) was that the determination of whether any particular candidate could serve for a "sufficient time" was a matter for the CEC, not for anyone else (see paragraph 8 of the Officer's decision). The CEC, when fully constituted, is a very large body, and the right for any would-be candidate such as Mr Stokes to have his case considered by it was, in our view, an important constitutional right which the trio of reformers had no right to purport to remove. Mr Stokes was deprived of that right.[44]The starting point for the issues before the Officer was, therefore, that the introduction of the Impending Retirement Provision was unconstitutional and unlawful, and it follows that Mr Short (in his capacity as NRO) had no right on 6 February 2003 to disqualify Mr Stokes from standing. Mr Stokes was, therefore, unlawfully excluded from the election as a result of an unconstitutional executive act. One might perhaps be tempted to think that must mean that his exclusion was automatically unreasonable for the purposes of section 47(1). However, it was common ground before the Officer, as before us, that that does not necessarily follow, and it is clear from his reasoning that the Officer fully recognised that. He directed himself (in paragraph 28) that the question he must ask himself was simply "whether [Mr Stokes] was unreasonably excluded from standing for office" and in paragraph 30 he recognised that, in answering that question, he had to have regard to all the relevant circumstances of the exclusion. He did not, therefore, regard the unlawfulness of the Impending Retirement Provision as automatically trumping all the Union's arguments, although we consider he was properly entitled to take it into account. He identified three particular considerations to which he proposed to have regard (we have referred to them) and he reached the overall conclusion that the exclusion was unreasonable.[45]The exercise the Officer was performing in that respect was essentially a fact finding one. We cannot interfere with his decision unless we are satisfied that at some point in the journey towards it he misdirected himself. We can detect no error in the basic direction he gave himself, and nor can we see that, in arriving at his conclusion, he considered matters he should not have brought into account, or failed to consider matters he should have brought into account. In particular, we cannot see that he was in error in placing the reasonable expectations of the members into the scales. Nor do we accept that there is justification in the criticism that he assumed that, under the Precursor Provision, Mr Stokes would have had a right to stand as a candidate as opposed to having merely the lesser right to have his candidacy considered by the CEC. We acknowledge that in paragraph 28 the Officer directed himself that the question for him was "simply whether [Mr Stokes] was unreasonably excluded from standing for office" (our emphasis), a statement which may perhaps be viewed as providing some support for the criticism. But his reasons must be read as a whole, and they satisfy us that he well understood that, because of his age, the Precursor Provision set up an extra hurdle for Mr Stokes to surmount: we refer to paragraph 8, in which the Officer referred to Mr O'Hara's evidence about the role of the CEC being to decide whether a candidate would be able to serve a "sufficient time"; and to paragraph 23, in which he summarised Mr Stokes' own case that, given his age, he would have been able to serve for a "sufficient time" under the Precursor Provision. It would have been obvious to the Officer that that was merely Mr Stokes' asserted position, and that it would have been for the CEC to determine whether or not it agreed with him. We do not accept that there is any basis for the suggestion that the Officer ever forgot this, and proceeded instead to a view that Mr Stokes had, under the Precursor Provision, an indefeasible right to stand as a candidate if nominated.[46]We have concluded that the Officer did not misdirect himself in any manner, or commit any error of law in arriving at the decision he did on Mr Stokes' complaint under section 47(1). We dismiss the appeal against that part of the decision. Ground 2: breach of rule 15.3[47]We heard virtually no argument on this. Mr Langstaff conceded that, if the Union was wrong in its challenge to the section 47(1) finding, it could not fault the Officer's conclusion that the Union had breached rule 15.3, although of course his submission was that, if the Union was right on the section 47(1) point, there could be no question of there having been a breach of rule 15.3. We also dismiss the appeal against this part of the Officer's decision. Ground 3: the enforcement order[48]Mr Langstaff submitted in his skeleton argument that, as the Officer found that the Impending Retirement Provision was in principle a reasonable one, he ought not to have made the enforcement order, but should have given the Union the opportunity to consider the matter internally and, if so minded, to adopt the provision in a constitutional manner and retrospectively. Mr Langstaff did not develop that point in his oral argument. We regard the submission as unattractive, and are anyway not satisfied that the Union could validly adopt a provision which could retrospectively deprive Mr Stokes of rights to which he was entitled at the time of the 2003 election. In any event, we do not understand this point to have been argued before the Officer.[49]Mr Langstaff's main point in his oral argument was (in substance) that this exercise of the Officer's jurisdiction was materially disproportionate. He said that the Officer paid insufficient regard to the fact that, on any new election, Mr Stokes would still have at best a mere chance of persuading the CEC that he could serve a "sufficient time" to justify being allowed to stand as a candidate, and he said the Officer failed to attempt to assess the strength of this chance. In addition, he said that the decision to require Ms Coulter, the Deputy General Secretary elected in the 2003 election, to vacate office was an extreme one, resulting in there being no office holder in place pending the holding of the new election.[50]We will deal with this part of the appeal shortly. Once the Officer had made the declarations he did, the legislation required him to make an enforcement order unless he considered it inappropriate to do so. The Officer directed himself by reference to the legislation, and concluded that it was not inappropriate to make an enforcement order. He accordingly made one. For reasons given, we are in no doubt that he understood that Mr Stokes would at best have only a chance of standing as a candidate at the new election, he was fully aware of the cost of holding a new election, and he must have been aware of the interruption to the Union's affairs which would be caused by his order requiring the Deputy General Secretary to vacate office. The making of an enforcement order was essentially a matter of judgment for the Officer, and we cannot detect any error of law in his decision to make it. Result[51]We have earlier recorded the terms of paragraph 5.3 of the Officer's order. The date 15 April 2003 there mentioned was in fact the day on which the result of the election was announced. The newly appointed officers took up office on 18 May 2003. During the argument, Mr Langstaff proposed, and Mr Linden for Mr Stokes agreed, that, if the appeal failed, paragraph 5.3 should be amended so as to substitute 18 May 2003 for 15 April 2003. We will direct the making of that amendment, but otherwise we dismiss the Union's appeal.