MR A SCARGILL v NATIONAL UNION OF MINEWORKERS [2010] UKEAT 0407_09_2701

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2010] UKEAT 0407_09_2701

Case No Appeal No. UKEAT/0407/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A SCARGILLAPPELLANT

NATIONAL UNION OF MINEWORKERSRESPONDENT

Before

Mr Justice Underhill

Date 27 January 2010

[1]APPEARANCES For the Appellant MR A SCARGILL (The Appellant in Person) For the Respondent MR NEIL CARR (of Counsel) Instructed by: Messrs Raleys Solicitors Regent House Regent Street Barnsley South Yorkshire S70 2EG SUMMARY CERTIFICATION OFFICER Various issues arising out of disputed elections for positions within the National Union of Mineworkers. Held :(1) The Certification Officer had been entitled to find that the "Yorkshire Area Office Branch" was not a branch of the Union constituted in accordance with its rules.

(2) The requirements of section 50 of the Trade Union and Labour Relations (Consolidation) Act 1992 that every member be accorded an equal entitlement to vote applies to elections for the positions specified in section 46 and not to any vote which may be involved in any prior process for nominating candidates for such positions. Observations on the fact that the Union's current arrangements do not secure that every member is a member of a properly constituted branch. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) INTRODUCTION This is an appeal against parts of a decision of the Certification Officer dated 29 June 2009. The appeal comes before us under sections 56A and 108C of the Trade Union and Labour Relations (Consolidation) Act 1992 . The Appellant, Mr Arthur Scargill, appears in person. The Respondent, the National Union of Mineworkers, has been represented by Mr Carr of Raleys.

[2]The appeal arises out of elections conducted by the Union in April/May and July/August 2008 to the National Executive Committee of a representative of the Yorkshire Area of the Union. On the first occasion two candidates were nominated, Mr Kitchen by the Kellingley branch and Mr Mace by the Maltby branch. On the second occasion there were again only two nominations, Mr Hatfield nominated by Kellingley and Mr Mace again nominated by Maltby. On both occasions Mr Mace was excluded from standing on the basis of what has been described as "the 30 per cent rule", which we will explain shortly; and Mr Kitchen and Mr Hatfield were accordingly elected.

[3]Mr Scargill, who is a member, and a past President (and now Honorary President), of the Union, has brought a number of complaints before the Certification Officer arising out of those events. At a case management hearing on 17 February 2009 the issues raised by the complaints were analysed and agreement was reached as to the issues which required to be determined. That agreement was recorded in a careful and thorough case management summary prepared by the Certification Officer, the material parts of which are recited at paragraph 2 of his decision. The matters requiring determination constituted alleged breaches partly of the statutory rules governing the conduct of certain Union elections, set out in Chapter IV of Part I of the 1992 Act, which engaged the jurisdiction of the Certification Officer under section 55, and partly of the Union's own rules, which engaged his jurisdiction under section 108A.

[4]Broadly, the issues fall into two groups; and they, and the Certification Officer's decision in relation to them, can be summarised as follows: (1) STANDING ORDER 9 AND RULE 9.E

[5]Rule 9.E of the Union's rules provides as follows:

"9.E Branches shall be entitled to nominate members for election as representative members of their Area on the NEC and Area Executive Committees shall, when more than one nomination is submitted, arrange an election by individual ballot of the members taken on the principle of 'the transferable vote' as defined in Section 41 of the Representation of the People Act 1918, and the name of the person so elected shall be communicated to the Secretary of the Union in time to be included on the Final Agenda of the relevant Biennial Conference."

[6]The Yorkshire Area did not conduct the two elections with which we are concerned, strictly in accordance with that rule. It applied in addition its own Standing Order 9, which reads as follows:

"9. Branches shall be entitled to nominate members for election as representative members of the Yorkshire Area on the NEC. Nominations shall be confined to a person who is a financial member and has been for at least 12 months immediately prior to nomination. At the close of nominations only those candidates will be eligible for election who have received the nominations of Branches, the total membership of which together amounts to 30% or more of the total membership of the Area on the basis of the published figures. The election of the NEC representatives shall be by vote of full financial member of the Area. The ballot shall be taken on the principle of the 'transferable vote' as defined in Section 41 of the Representation of the People Act 1918."

[7]The only difference between the provisions of Rule 9.E and Standing Order 9 which is material for the purpose of this appeal is the requirement of the latter that candidates will only be eligible for election if they have received the nominations of branches whose total membership amounts to 30 per cent or more of the total membership of the area - that being the "30 per cent rule" to which we have already referred. The effect of the rule in the circumstances of the two elections with which we are concerned was to exclude Mr Mace's nomination, because the membership of the Maltby branch at the material time represented only 28.8 per cent of the membership of the Yorkshire Area. The absolute figures are that the total membership as published was 829, and the number of members in the Maltby branch was 239. (In fact, the effect of the rule, as the Certification Officer noted, was that since only the Kellingley branch had 30 per cent or more of the Area membership - having 436 members, or 52.6 per cent - any member not nominated by Kellingley would require nomination by more than one branch.)

[8]Mr Scargill challenged the application of the 30 per cent rule on two bases. First, he contended that it was a breach of the Union's rules to conduct the election on the basis of anything other than Rule 9.E. Secondly, he submitted that Standing Order 9 had not in fact ever been validly adopted by the Yorkshire Area. The Union's case was that Standing Order 9 was indeed valid and that it was legitimate to apply it, and thus also the 30 per cent rule, because of the provisions of Rule 19.E, which reads as follows:

"19.E The Rules of each Area and Constituent Association shall be the Model Rules and any amendments thereto and any such amendment shall automatically become an amendment to the Rules of each Area and Constituent Association on the date of adoption of the amendment by Conference or such other date as Conference may determine. The current National Rules shall be deemed to be part of the Area Rules. Each Area or Constituent Association may have such other Rules in addition to the Model Rules as it may decide provided that no such Rules shall conflict with any National Rules or Model Rules or with the policy of the Union."

The Union submitted that Standing Order 9 was an "other rule" of the kind referred to in the final sentence of Rule 19.E.

[9]The challenge to the applicability of Standing Order 9 was the first of the issues defined at the case management hearing and was defined in the case management summary as issue 5.1. It was said to give rise to three sub-issues, as follows:

"5.1.1 Is Standing Order 9 an additional Rule within the meaning of National Rule 19E? 5.1.2 Does Standing Order 9 conflict with any National Rules, or Model Rules, or policy of the Union as prohibited by National Rule 19E? 5.1.3 Is Standing Order 9 a valid rule of the NUM (Yorkshire Area), having regard to the method by which it was adopted? Mr Scargill asserts that it was not adopted in accordance with the rules at the time it emerged, namely when the NUM (Yorkshire Area) transferred its engagements to the National NUM in 1994."

[10]The application of Standing Order 9 was also, and separately, said by Mr Scargill to give rise to two breaches of the relevant statutory provisions. Specifically: (a) He submitted that the exclusion of Mr Mace as a candidate by reason of the 30 per cent rule was unreasonable and thus contravened section 47(1) of the 1992 Act which reads as follows:

"No member of the trade union shall be unreasonably excluded from standing as a candidate."

That was identified in the case management summary as issue 5.3.

(a) which provides that:

"(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 ..."

That was identified as issue 5.2 in the case management summary. It is common ground that if the exclusion of Mr Mace was indeed in breach of section 47(1) there would also have occurred a breach of section 46(1)(a), and the issue does not therefore require to be separately considered.

[11]As to those issues the Certification Officer decided as follows:(1) As regards issue 5.1.3, Standing Order 9 was a valid and biding rule of the Yorkshire Area, subject to the effect of Rule 19.E: see paragraphs 18-20 of his decision (also paragraphs 49-50). But :

(2) Since the 30 per cent rule imposed an additional requirement between nomination by a branch and appearing on the ballot paper, it conflicted with Rule 9.E and was accordingly, by virtue of Rule 19.E, of no effect: see paragraphs 39-48.

(3) The exclusion of Mr Mace's candidature, in reliance on the application of the 30 per cent rule, was unreasonable and thus contravened section 47(1): see paragraphs 54-66.

(4) As we have already observed, it followed that there was a breach of section 46(1)(a): see paragraph 71.

[12]In short, therefore, the challenge to the application of the 30 per cent rule succeeded on two distinct bases – first, that its application was a breach of the Union's own rules; and secondly, that it constituted a breach of section 47(1). It should be noted, however, that en route to that conclusion one sub-issue was decided in favour of the Union, namely as to the formal validity of Standing Order 9. (2) THE YORKSHIRE AREA OFFICE BRANCH

[13]As appears from Rule 9.E, the right to nominate candidates for election to positions of the kind there identified is vested in branches. Mr Scargill contended that the two elections with which we are concerned were invalid, irrespective of the application of the 30 per cent rule, on the basis that a branch known as the Yorkshire Area Office Branch was not permitted to participate in the nomination process. If that is correct it would, on the face of it, invalidate the elections whatever the actual effect of the exclusion of the branch would be. But it is, for what it is worth, clear that Mr Scargill believed that it would have made a practical difference, because the Yorkshire Area Office Branch has a membership, as he analyses it, of 71 (about 9 per cent, therefore, of the total membership of the Area) and that if that branch had proceeded also to nominate Mr Mace the 30 per cent rule would not have operated to exclude him.

[14]The Union's case was simply that there was no such branch, within the meaning of the Rules, as the Yorkshire Area Office Branch. Its case is conveniently summarised at paragraph 21 of the Certification Officer's decision, which reads as follows:

"21. The Union contends that even though there may have been a 'Yorkshire Area Office Branch' at some time in the distant past, it fell into disuse at an unknown date and certainly did not exist in 2008. The Union maintains that, as a consequence, it was under no obligation in 2008 to seek nominations for the election of Yorkshire Area representatives on the NEC from this non-existent branch. In support of this position, it argued that the issue of whether there was a 'Yorkshire Area Office Branch' did not surface until 2003, following the retirement of Mr Scargill, and that before then it was not an issue that the so-called 'Yorkshire Area Office Branch' could not nominate potential candidates for the NEC. Members not in a properly constituted branch could and did obtain a branch nomination elsewhere and secure election."

[15]That dispute constituted issue 7.1 in the case management summary, which is in the following terms:

"7.1 Breach of Rule. It is alleged that the Union acted in breach of National rule 9E by excluding the NUM (Yorkshire Area Office Branch) and its members from participating in the nomination procedure for the election of a representative member of the NUM (Yorkshire Area) on the NUM NEC in or around April 2008. The Union denies the alleged breach on the basis that at the time of this election there was no Yorkshire Area Office Branch in existence. The issue to be determined at the full hearing therefore is whether at the time of this election there existed, under the constitution of the NUM and the NUM (Yorkshire Area), a Yorkshire Area Office Branch which had the right to nominate members for election to the NEC in accordance with National Rule 9E and/or Yorkshire Area Standing Order 9."

[16]Mr Scargill also and separately contended that the exclusion of the Yorkshire Area Office Branch from the nomination process also gave rise to a breach of section 50(1) of the 1992 Act, which is in the following terms:

"Subject to the provisions of this section, entitlement to vote shall be accorded equally to all members of the trade union." (It is not necessary for us for the purpose of the issues which arise on this appeal to set out the remaining provisions of section 50.) Mr Scargill's submission was that the exclusion of the Yorkshire Area Office Branch from the nomination process gave rise to a breach of section 50 because the process of candidate selection within a branch itself, at any rate in the event of there being more than one potential candidate, involved a voting process, as is clear from Rule 9.E. This issue constituted issue 5.4 in the case management summary, which reads as follows: "5.4 Breach of Statue (section 50(1)). It is alleged that the Union breached section 50(1) of the 1992 Act by not allowing members of the Yorkshire Area Office Branch to vote in the nomination process for the position of Yorkshire Area representative in the NUM NEC. Mr Scargill accepts that members of the Yorkshire Area Office Branch would have been allowed to vote in a contested election, if one had taken place, but contends that section 50(1) requires all members to have an equal entitlement to vote in the nomination process as well as in any subsequent contested election."

[17]We should note that an important element in Mr Scargill's argument that the Yorkshire Area Office Branch should have been permitted to make a nomination was that the Rules of the Union, as he contended, require that every member also be a member of a branch.

[18]The Certification Officer considered at paragraphs 21-35 of his decision the issue of whether there was indeed a Yorkshire Area Office Branch constituted within the meaning of the Rules - what he referred to by way of shorthand as a "rule-book branch". His conclusion was, at the end of paragraph 35:

"Having considered the evidence and submissions on this point, I find as fact that in 2008 there was no branch in the Yorkshire Area known as the 'Yorkshire Area Office Branch'."

We should also, for reasons which will appear, note what he said in the two immediately preceding sentences:

"It is not for me to determine in this case whether all members must be members of a branch and, if so, order that a branch be set up for those not now in a branch. I must determine if there was a 'Yorkshire Area Office Branch', constituted within the rules of the Union, in 2008."

[19]As regards the issue as to the effect of section 50, that was considered by the Certification Officer at paragraphs 66-69, which it is convenient that we should set out in full. They read as follows:

"66. Mr Scargill submitted that members of the so-called 'Yorkshire Area Office Branch' were denied the entitlement to nominate candidates in the two elections in 2008 for the Yorkshire Area representative on the NEC. He argued that entitlement to vote had therefore not been accorded equally to all members of the Union in breach of section 50(1) of the 1992 Act. 67. Mr Carr, for the Union, submitted that section 50 of the 1992 Act applies only to the casting of votes for eligible candidates in an election and not to the nomination process, prior to any such election. He emphasised that, had there been a contested election, all members on the Area Office register would have been entitled to vote. He also argued that, even if his primary submission was wrong, the Union was entitled under section 50(3)(c) ' to restrict entitlement to vote to members who fall within a class which is by virtue of the rules of the Union, treated as a separate section within the union'. Mr Carr submitted that the Union may therefore decided, for example, to deny voting rights to members of branches that are not ' fully constituted' , or, indeed, under the statute, to deny such rights to members of a particular branch. 68. In my judgment, section 50(1) of the 1992 Act applies only to the act of voting in an election which a Union is required to conduct by section 46. I accept Mr Carr's primary submission in this regard and find Mr Scargill's contention that section 50(1) also applies to the nomination process to be unsustainable on the language of Chapter IV. However, I reject Mr Carr's alternative submission based on section 50(3)(c) on the grounds that the so-called 'Yorkshire Area Office Branch' was not treated as a separate section within the Union by virtue of the rules of the Union. The rules envisage all members being allocated to a branch. They do not envisage a group of members outside the branch structure, identified only by being contained on an area register to which there is no reference in the rules of the Union. 69. For the above reasons I reject Mr Scargill's complaint that the Union acted in breach of section 50(1) of the 1992 Act by allegedly failing to accord equally to all members the entitlement to vote."

[20]Having reached those conclusions, the Certification Officer made the following formal decisions:

"(i) I declare that the National Union of Mineworkers ('the NUM' or 'the Union') breached rule 9.E of its rules by carrying out elections for the two positions as representatives of the National Union of Mineworkers (Yorkshire Area) ('the Yorkshire Area') to the National Executive Committee ('the NEC') of the NUM in April/May and July/August 2008 in accordance with Standing Order 9 of the Yorkshire Area and not in accordance with Rule 9.E. (ii) I refuse to make a declaration that the Union acted in breach of its rules or in breach of the 1992 Act by allegedly excluding the 'Yorkshire Area Office Branch' from participating in the nomination procedure for the said elections held in April/may and July/August 2008. (iii) I declare that the Union breached section 46(1) of the 1992 Act by failing to secure that those elected as representatives to the NEC from the Yorkshire Area in 2008 held their positions by virtue of having been elected to them at elections satisfying the requirement of Chapter IV of the 1992 Act. (iv) I declare that the Union breached section 47(1) of the 1992 Act in the said elections in April/May and July/August 2008 by unreasonably excluding Mr Mace as a candidate in the elections. (v) I refuse to make a declaration that the Union breached section 50(1) of the 1992 Act in its conduct of the said elections in April/May and July/August 2008 by allegedly failing to accord equally to all members the entitlement to vote."

[21]By way of enforcement pursuant to those decisions he directed as follows:

"(vi) I order that the results of the elections of the Yorkshire Area of the Union for the position of representative on the NEC which were held in April/May and July/August 2008 be set aside and that the candidates declared elected in those elections shall forthwith cease to hold office. (vii) I further order that elections for the two positions on the NEC so vacated shall take place so that the results are declared no later than 4 September 2009. The election shall be conducted so as to comply with Chapter IV of the 1992 Act and the rules of the Union (including the Standing Orders of the Yorkshire Area), save that the sentence in Standing Order 9 which provides that, ' At the close of nominations only those candidates will be eligible for election who have received the nominations of Branches, the total membership of which amounts to 30% or more of the total membership of the Area on the basis of the published figures' is void and of no effect and is not to be applied. The Union is given leave to apply should it not be possible to meet the above deadline."

[22]We note, though it is not formally material, that the elections were indeed re-run as required by order (vii) and Mr Mace was in fact elected to one of the two positions.

[23]Finally we should note that in the final paragraph of his decision, paragraph 74, under the heading "Observation", the Certification Officer said this:

"74. I have found as a fact that there was no branch of the Yorkshire Area known as the 'Yorkshire Area Office Branch' in 2008. I have also commented that the rules of the Union envisage all members being in a branch. The Union has been aware of a problem in this regard since at least 2003, shortly after Mr Scargill retired. Although there may be many practical difficulties in balancing the interests of those currently working in the mining industry and those who are not, the Union may wish to address the issue of those members not currently in a rule book at the earliest opportunity."

THE APPEAL

[24]The issues raised in Mr Scargill's Amended Notice of Appeal are defined at paragraph 1 as follows (we insert letters of the alphabet for ease of reference):

"I appeal to the Employment Appeal Tribunal against the findings and decisions of the Certification Officer in the above case on the basis he erred in law in his findings on page 1, [a] points (ii) and [b] (v); [c] page 16, paragraph 35; [d] the findings in paragraph 43; [e] the finding in paragraph 50; and [f] his judgment in paragraphs 68 and 69."

Precisely what is there being appealed against can be elucidated as follows: (A): the decision that the Yorkshire Area Office Branch did not exist as a "rule-book branch" (see para 18 above); (B) & (F): the rejection of the claim that there had been a breach of section 50(1) of the 1992 Act (see para 19); (C): the Certification Officer's refusal to determine whether the rules of the Union required that every member be a member of a branch (see para 18); (D) & (E): the rejection of the contention that Standing Order 9 was not a valid rule of the Yorkshire Area (see para 11). We will take those issues in turn.

(A) THE YORKSHIRE AREA OFFICE BRANCH

[25]We should start by saying a little more about the nature of the argument before the Certification Officer and the basis of his decision. Mr Scargill produced a wealth of documentary and other material which showed incontrovertibly that there had existed, from at least 1972 and no doubt before - and that the Yorkshire Area from at least that date recognised in formal documentation of various kinds - an entity described as the Area Office Branch; and that many members of the Area, including himself, were recognised as belonging to it. The issue before the Certification Officer, however, was not whether such a branch existed in some loose sense but whether it constituted a rule-book branch - that is to say, a branch constituted in accordance with the relevant provisions of the Rules. We need not set out those provisions in any detail. As one would expect, the Union's Rules and Standing Orders contain elaborate provisions for the constitution and governance of branches: see in particular Standing Orders 16-23 of the Yorkshire Area Standing Orders, which govern such matters as the duties of the Branch President, Branch Secretary, Branch Treasurer, Branch Delegate and Branch Committee, elections for such positions and the management of branch monies.

[26]The Union's position on that issue was set out by the Certification Officer at paragraphs 24-27 of his decision in the following terms. "24. Mr Carr, for the Union, maintained that what has been called the 'Area Office Branch' is not a branch within the meaning of the rules. In his words, it was not 'a fully constituted branch' but, in effect, a register of members. Evidence was given that in practice branches are workplace or unit based, whichever is appropriate so as to represent the interests of working miners and ancillary working occupations. Mr Kitchen stated that many of those elected to full-time positions within the Union left their workplace branches as they felt that there might be a conflict of interest if they were required to advance views which were contrary to the interests of the members of their former branches. Such officials retained their rights as full members but, for administrative purposes, appeared on the 'Area Office' register. Others, like Mr Kitchen, remained a member of their colliery branches. From time to time, other types of members were put into the 'Area Office'. Contractors have sometimes been employed in the industry to carry out specific projects, such as the development of the Selby coalfield. They became members of the Union for the duration of their work in the industry and were put into the 'Area Office'. Also, when collieries and their associated branches closed any remaining members may be put into the 'Area Office'. Such members retained all the rights of individual members. They are entitled to stand and vote in all relevant elections and ballots. They are entitled to all the benefits of membership, which they access through the area officials rather than through their branch. The only activity from which they are excluded are the activities restricted to fully constituted branches, namely the nomination of candidates, the election of a delegate to Area Council and the forwarding of resolutions for consideration by Area Council and the forwarding of resolutions for consideration by Area Council. However, as area officials are present at all Area Council meetings, they are in practice the link between the 'Area Office' membership and Council. Mr Kitchen maintained that the 'Area Office' membership could make personal injury claims. They could raise grievances and they did have a voice on Area Council. 24. The Union gave evidence that the references in the documentation between 1972 and about 1994 to 'Area Office' are not conclusive of the existence of a fully constituted 'Area Office' branch in that period. Mr Carr submitted that such references are more consistent with it being a register of those members who were not in any branch. He stated that such members were entitled to vote and that accordingly, when any election results were declared, their votes had to be recorded under some heading. The term 'Area Office' was just a convenient description for this purpose, even though the column in which it appeared was headed 'branch'. Similarly, when members stood for office it was customary to put their branch against their names. Mr Carr pointed out that when area officials stood for office, it was also customary to put their job titles, such as area agent, compensation agent, vice-president etc, against their names. He commented that it was not suggested that there was an 'area agent branch', or 'a compensation agent branch'. Mr Carr further commented that 'Area Office' was only used in this context when the candidate was a staff member at the 'Area Office' as opposed to an elected official.26. Mr Kitchen stated that there is nothing in the rules of the National Union or the Yorkshire Area that requires any individual member to be allocated to a branch. Mr Carr referred to national rule 5.F(1) which provides that ' Every member of the Union shall be allocated by the NEC to an appropriate Area … ' and to rule 18.A which provides that ' The members of the Union shall for the purpose of administration be organised into divisions of the Union to be known as 'Areas' … '. He noted that there is no similar reference to a member being allocated to a branch. As to branches, Mr Kitchen referred to rule 19.A which provides that ' Areas shall have such Area Councils … Area Officials … and there shall be such Branches in each Area, with such Branch Committees and Branch Officers as may be prescribed by the regulations applicable thereto'. As to the Standing Orders of the Yorkshire Area, Mr Carr referred to Standing Order 16(a) which provides that ' The Area shall be divided into as many Branches as may be deemed expedient. The Area Council shall supervise and co-ordinate the action of all the Branches in the Area in accordance with the Standing Orders and policy of the Area …'. He submitted that the rules could have required that members belong to a branch but they do not do so. They refer only to members being allocated to an Area.

27. The Union argued that to be a branch under the rules requires the approval of Area Council and that it must have certain characteristics which are set out in the rules. Mr Carr submitted that there is no minute recording the establishment of a 'Yorkshire Area Office Branch' and that the alleged branch has none of the required characteristics. In their evidence, Mr Kitchen and Mr Skidmore referred to the fact that the so-called 'Yorkshire Area Office Branch' has no president, secretary or treasurer (Standing Order 16(c)); that it made no returns to Area Office recording its membership or expenditure (Standing Order 18); that it had no branch delegate (Standing Order 20); or branch committee (Standing Order 21); that it did not hold monthly general meetings (Standing Order 21(d)); and that it did not have its own local fund (Standing Order 23(a)). Further, the so called 'Area Office Branch' did not receive 8% of the weekly contributions made by members of the branch as required by National Rule 6.N. Mr Carr also submitted that there was no reference to it in the area directory which lists branches, nor in the Union diary."

[27]The Union also relied on the fact that in 1996 - Mr Scargill says that it was 1994, but nothing turns on this - the Area Council resolved to establish so-called "surgery branches". The Certification Officer's findings in relation to those appear at paragraph 28, but we need not set them out in full here. The essential point is that the minute of the relevant Area Council meeting records that:

"It was agreed to set up four new area branches in South Yorkshire, North Yorkshire, Barnsley and Doncaster (without voting rights) in order to cater for members who no longer have a branch."

That is said to be an explicit recognition that there were, however anomalously, entities called "branches" within the Union but which it was also explicitly recognised were not rule-book branches.

[28]Mr Scargill contended that the numerous documents to which he had referred could not be explained away on the basis proposed by the Union. An important part of his argument, as we have already noted, was that it was constitutionally necessary that every member of the Union should be a member of a branch. He was unable to identify any provision which explicitly said so, but he was able to point to a large number of provisions which clearly assumed that that was the case, and he pointed out that by reason of those provisions a branch was the primary conduit through which members obtained access to the services of the Union. He relied in particular also on Rule 31.D of the Union's Rules, which confers the power on the National Disciplinary Committee to consider a complaint that a member "has ceased to be a member of any branch of the Union", pointing out that if such a complaint were established the member could be suspended or expelled.

[29]It is clear that the question of the existence or otherwise of the Yorkshire Area Office Branch, as a duly constituted branch of the Yorkshire Area, has been a matter of considerable controversy within the Union for some time. The opinion first of one and then of another leading counsel was obtained in 2004. The Union declined to waive privilege in the contents of those opinions. Mr Scargill is very critical of that decision but accepts that it cannot be formally challenged. He himself saw the opinions at the time and, whether or not it is strictly right that he should do so, gave us his view of their effect. It seems in fact that the first, from John Hendy QC, was at least equivocal on the question, which led to the obtaining of the second opinion, from Mr Brian Langstaff QC, with the benefit, it was said, of much fuller information. Mr Scargill told us that the effect of Mr Langstaff's opinion was that the Yorkshire Area Office Branch did indeed "exist" but that it was necessary thenceforth for it to be properly run in accordance with the Rules of the Union. He told us that the Area Council had resolved to act in accordance with that advice, but that in fact, for reasons of which we were not given the details but which were clearly themselves contentious, no action had been taken between 2004 and 2008 to regularise the position. We have felt it right to set out that background because Mr Scargill attaches a good deal of importance to it, but the fact remains that we have not ourselves seen the advice of leading counsel, and even if we had we would not be bound by it. The Certification Officer himself in his decision declined to give any weight to what he was told about counsel's opinion and that seems to us to have been evidently the proper course.

[30]The Certification Officer's reasoning on this issue appears in two sections. First, at paragraph 29 he said this:

"29. The decision I must make is not whether such a branch should exist but whether one actually existed in 2008. No matter what the position was in the years immediately after 1944, I have seen no evidence which persuades me that an organisation which operated as a branch under the Rules and Standing Orders of the Union has existed under the name 'Yorkshire Area Office Branch'. Mr Scargill has been assiduous in the presentation of documents which contain any reference to 'Area Office' but there is a conspicuous absence of any documents which record the normal operation of a branch. There are no branch minutes (other than the four minutes in 2003 – see paragraph 30), no record of branch elections, no branch accounts, no branch stationery, no branch stamp. Mr Scargill explained that he thought the previous Branch Secretary, now deceased, had burned all his records. I find this explanation unconvincing. Even if some records were destroyed, I find that others would have continued to exist and that Mr Scargill, who claims membership of this branch from 1972, would have or would have had access to some of them if they had ever been created. I accept the evidence of the Union that the so called 'Yorkshire Area Office Branch' was no more than a register of those members who did not have a branch, originally because it consisted of officials and staff members, and later for historical reasons, as it proved convenient to have a holding category but without branch status. The references in the documents to 'Area Office' in the period between 1972 and about 1994 are all consistent with the 'Area Office' being used as a register of members, including the transfer of members from the Barnsley Road Transport branch."

Later, at paragraphs 34-35, the last few sentences of which we have already quoted, he said this: "34. I find that a semantic examination of each occasion upon which the word 'branch' has been used in the documentation is far from conclusive that the members to which reference was being made were members of a branch within the meeting of the rules. This is best demonstrated by the so-called surgery branches. I find that the Union has used the word 'branch' loosely and no particular significance can be attributed to the use of this word in general correspondence. 35. Mr Scargill has referred me to the many rules which refer to branches. He relies particularly on the references that appear in the context of personal injury cases, grievance and discipline. There is no doubt that the rules envisage all members being allocated to a branch but there is no express rule to that effect. The rules merely state that members shall be allocated to an Area and that an Area shall be divided into as many branches as the Area considers expedient. These rules must be seen in context, particularly against the situation in which many collieries and branches have been closed and yet many former miners have wished to retain their links with the Union, through limited membership, some for the purposes of personal injury claims. This gave rise to groups of members with different interests, in particular working miners for whom the Union was founded, and others. Working miners were in the main allocated to branches and played a full part in the Union's democracy. Many former miners were deliberately excluded from much of the Union's democracy for obvious reasons. It is against this background that the surgery branches were established, which I find were not branches within the meaning of the rules. It is also against this background that the so-called 'Yorkshire Area Office Branch' evolved pragmatically as a register of members. I find that this situation prevailed, both before and after Mr Scargill's retirement. It is not for me to determine in this case whether all members must be members of a branch and, if so, order that a branch be set up for those not now in a branch. I must determine if there was a 'Yorkshire Area Office Branch', constituted within the rules of the Union, in 2008. Having considered the evidence and submissions on this point, I find as fact that in 2008 there was no branch in the Yorkshire Area known as the 'Yorkshire area Office Branch'.

[31]Mr Scargill challenges the Certification Officer's decision, essentially on the basis that it is perverse - that is, that he was bound on the material before him to find that the Yorkshire Area Office Branch was indeed a properly constituted branch entitled to nominate candidates for election in accordance with Rule 9.E. We do not accept that submission. It will be sufficiently apparent from the passages which we have set out, but it appears still more clearly from a complete reading of the decision, that the Certification Officer carefully and conscientiously considered both all the documents and facts and all the arguments advanced before him by Mr Scargill and by the Union and made a judgment on what was essentially a question of fact. Such a conclusion cannot be challenged in this Tribunal, unless it was a decision which was simply not rationally open to him on the evidence which he had heard. This seems to us to be a very long way from such a case.

[32]It may seem surprising that what was, on the Certification Officer's findings, a clearly anomalous state of affairs was allowed to arise and to continue for so long. The Certification Officer's observation in the final paragraph of his decision, which we have already quoted, shows that he did not regard it as satisfactory. We have something more to say about this below. But it is somewhat less surprising in view of the well-known difficulties faced by the Union in recent years following the contraction of the mining industry. It is also within the knowledge of members of this Tribunal, as we mentioned in the course of the hearing, that pragmatic arrangements of this kind to cover members of unions who, for one reason or another, do not naturally fall within membership of duly constituted branches are not unknown in other trade unions. Be that as it may, the important question is not what ought to have happened but what did happen. Even if it was a breach of the Rules that the members described as belonging to the Yorkshire Area Office Branch did not in fact belong to any duly constituted rule-book branch, that fact cannot be used to deem into existence a branch which ought to have existed but in fact did not.

[33]Before we leave this issue we should mention one particular point which bulked large in the argument before us. Under Rule 6.N of the Union's Rules, every branch of the Union is entitled to an "allowance for branch purposes and expenses" of 8 per cent of the contributions collected from members in accordance with Rules 6.L and 6.M. Rule 6.N provides that:

"… each Branch organisation shall have complete control and autonomy in respect of the expenditure of such allowance of eight per cent of the said weekly contributions of its members."

One of Mr Scargill's arguments before the Certification Officer related to those deductions, which he said had been paid into the Yorkshire Area Office Branch and were therefore a strong indication that it was recognised as a properly constituted branch. In paragraph 27 of his decision, which we have already set out, the Certification Officer recorded, and appeared to accept, the Union's submission that "the so-called Area Office Branch" did not receive 8 per cent of the weekly contributions made by members of the branch, as required by national Rule 6.N. Following the hearing before the Certification Officer Mr Scargill made further inquiries with Raleys in correspondence as to the positions about the 8 per cent deduction. After some delay, and very shortly before the present hearing, he received a letter from Mr Carr in the following terms:

"I can confirm that the 8 per cent 'branch deduction' levied from those who are members of the 'area office' register is retained and held by the Yorkshire Area and is used for the benefit of members of 'Area Office' register, for example to support the running of the 'surgery branches'."

Mr Scargill sought permission to refer to that letter as fresh evidence. Mr Carr resisted that on the basis that the information in question could have been sought and obtained prior to the hearing before the Certification Officer. We need not determine whether that objection is well-founded, though we are inclined to think that it is, because it does not seem to us that Raleys' letter is in any way inconsistent with the case advanced by the Union before the Certification Officer and accepted by him. It might indeed be said to support the Union's case rather than Mr Scargill's, since although it accepts that an 8 per cent branch deduction was made (which does not appear to have been in dispute), it says that it was retained and held "by the Yorkshire Area" - that is, not by any branch official, it of course being part of the Union's case that there were no branch officials. We do not therefore believe that the correspondence on which Mr Scargill seeks to rely advances the argument.

(B) &(F) SECTION 50

[34]We have already set out the nature of the issue which arises under this heading and the terms of section 50(1).

[35]It was common ground before us, and is in our judgement clearly correct, that the requirement of an equal entitlement to vote accorded by section 50(1) refers to entitlement to vote in an election of the kind specified at section 46. Chapter IV of Part I of the 1992 Act is headed "Elections for Certain Positions". Section 46 is the first section in the Chapter and establishes the duty to hold elections for the positions specified at s-s. (2). The following sections in the Chapter are by way of amplification of that duty. In our judgment the provisions of those sections apply, and apply only, to the process of election which arises once candidates have been nominated for election. They do not apply to the processes which precede nomination, even if those processes may involve a vote, as they would in the NUM where more than one person seeks the nomination of a particular branch.

[36]That conclusion seems to us to follow from the structure of this group of sections as whole, as we have described it; but it is reinforced by consideration of the detailed provisions. In particular, there are a number of positions referring to the "rights of candidates", but it is quite clear that those candidates are, and can only be, those standing in the election itself and not in some prior selection process: see, for example, sections 48(1) and 54(1)(a). To put it another way, for the purpose of this group of sections an election only starts at the moment that the candidates are selected.

[37]That would be our view apart from authority, but we believe that it is supported by the helpful and convincing analysis by the Certification Officer, albeit addressing a somewhat different issue, in Hardman v Community (2006) D/57-58/06. Mr Scargill submitted that it was inconsistent with a decision of a different Certification Officer in Paul v NALGO

[1987] IRLR 43

. In that case, in the context of the provisions of the Trade Union Act 1984, the Certification Officer said, at paragraph 47:

"I take 'election' in this context to mean a process involving choice by nomination and, where there is more than one nomination, by vote."

We were not offered any detailed analysis of the particular issues in that case or of the applicable statutory provisions, and we would not therefore say that the Certification Officer's reasoning, in the context in which it was made, may not have been correct. But we are satisfied that even if it is correct in that context it has no application in the context of section 50 of the 1992 Act.

[38]Our decision on this issue does not of course mean that this or any union may with impunity deny entitlement to vote in any processes for the selection of candidates. The question of entitlement to vote will presumably be governed by the rules of the union in question, and any breach of those rules may well be justiciable by way of a complaint to the Certification Officer under Chapter VII, in that it would probably, though we do not purport to decide the point, come under one of the heads of section 108A(2). (That would not, however, have assisted Mr Scargill in the present case in view of the Certification Officer's decision, which we have upheld, on the question of the existence of the Yorkshire Area Office Branch.) In any event, Parliament only chose to make specific statutory provision for certain specified aspects of the internal arrangements of trade unions, and it is certainly not in our view axiomatic that the arrangements for the selection of candidates should fall within such provision. (C) SHOULD ALL MEMBERS OF THE UNION BE MEMBERS OF A BRANCH?

[39]As we have noted, the Certification Officer declined to answer this question. He went no further than to note that the rules "envisaged" that all members of the Union should belong to a branch - that is, what he called a rule-book branch - and, in the observation which we have quoted at para 23 above, to encourage the Union to address the anomaly created by the fact that so-called members of the Yorkshire Area Office Branch were not in fact members of any rule-book branch.

[40]Mr Scargill contends that the Certification Officer ought to have decided the point and ought to have made a specific declaration that it was a requirement of the Union's rules that all members be members of a branch. In our judgment, however, the Certification Officer was formally correct to make no ruling on this point. It was not one of the issues defined in the case management summary, and it accordingly only needed to be decided if and to the extent that it was a necessary step in the determination of one of the issues which were formally before him. We have already held that that is not the case. To recapitulate, even if the Rules required that every member of the Union should belong to a duly constituted branch, that fact could not create such a branch if one did not in fact exist. There would no doubt in such a case be a breach of the Rules but it would be a different breach. The Union would still be entitled, indeed obliged, to allow nominations only from duly constituted branches.

[41]The Certification Officer not having made any formal decision on the point, we do not think that it would be right for us to do so either. We do however see force in Mr Scargill's point that to say that the Rules "envisage" that all members should be member of a branch may understate the position. If it were quite clear that the rule-maker intended that to be the case, then it is strongly arguable that, on ordinary principles of construction, such an obligation could be implied. (We should note at this stage that Mr Scargill sought to rely on an observation by Stocker LJ in the decision of the Court of Appeal in Rees v National Union of Mineworkers (1989; unreported), in which he said, at page 4 A-B of the transcript:

"Every member of the defendant Union who is allotted to an area is a member of a branch or lodge."

That is a factual statement, no doubt based on what the Court of Appeal was told on that occasion, and no doubt it accords with the general understanding. It certainly supports, if support were needed, the Certification Officer's position that the rules envisage that all members of the Union will be members of a branch. But it does not amount to a ruling that that was necessarily the case under the Rules. It is, therefore, not decisive of the point.)

[42]Having acknowledged the force of Mr Scargill's point in this regard, it is only fair to record also Mr Carr's submission that, whatever might be the position if we were concerned only with documents and only with the ordinary rules of construction, the position was different here because on the evidence there had long been a custom and practice of recognising the existence of members of the Union who did not belong to any rule-book branch. He emphasised that many of the apparent disabilities suffered by such a member were more apparent than real and that there were pragmatic means by which they were in practice accorded most of the rights of members who were members of a duly constituted branch. We need not go into the detail of that point, but we accept that such arrangements may work well in practice. However, the fact remains that there is a substantial mismatch between what the Rules envisage – or, it may be, require - and what appears to be happening in practice and that in some respect at least, as the present case illustrates, "members of the Yorkshire Area Office Branch" are disadvantaged compared with members of duly constituted branches.

[43]In those circumstances we would certainly endorse what the Certification Officer said in the "observations" to which we have referred. It seems to us that this is an anomaly which requires to be addressed at an early stage. Mr Carr, while giving nothing that could be construed as a guarantee, assured us that the situation was under active consideration.

(D) &(E) THE STATUS OF STANDING ORDER 9

[44]Although the Notice of Appeal contains a challenge to the Certification Officer's reasoning on this point it was not in fact covered in Mr Scargill's skeleton argument or oral submissions. In any event it is not in our view possible for him to appeal against what is, properly analysed, a subsidiary finding only made en route to the determination of the actual decision, namely whether there was any breach of the Union's Rule 9.E, a point on which he succeeded, albeit for a different reason. CONCLUSION

[45]For all those reasons we dismiss Mr Scargill's appeal. We wish to add that we were impressed by the clarity and thoroughness of the reasons given by the Certification Officer.