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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDonald, Re Application For Judicial Review [1998] ScotCS 102 (18 December 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/102.html Cite as: [1998] ScotCS 102

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The petitioner has for many years been a member of the St Andrew's Ambulance Association ("the Association") and is a member of its Council ("the Council"). He was also for a long period Commandant of the Burntisland Company of the St Andrew's Ambulance Corps ("the Corps"), a body set up by the Association. In this petition he seeks judicial review of two decisions. The first (which it will in some contexts be less tendentious to refer to as a "resolution") was taken by the Council on 21 January 1998, and was minuted (No. 6/3 of process) in the following terms:

The second was a decision of the Commandant-in-Chief of the Corps ("the Commandant-in-Chief") made on 16 July 1998 (No. 6/5 of process) refusing to ratify the nomination of the petitioner as Commandant of the Burntisland Company of the Corps. The remedies which the petitioner seeks are (i) reduction of the Council's decision of 21 January 1998 ("the first decision"), (ii) reduction of the Commandant-in-Chief's decision of 16 July 1998 ("the second decision"), and (iii) an order upon the Commandant-in-Chief to reconsider the approval of the nomination of the petitioner as Commandant of the Burntisland Company of the Corps. The Association and the Commandant-in-Chief are called as first and second respondents respectively. Answers have been lodged jointly on their behalf. When the petition called before me for a first hearing, counsel were agreed that (save for one matter which might require to be the subject of evidence) the issues raised in the petition could and should be determined at this stage.

The Association was constituted a body corporate by Royal Charter in 1899 (No. 7/1 of process). Its governing body is the Council, in which is vested "the sole and entire management of the Association", with power "to do all such acts as shall appear to them or the majority of the Council then present necessary or fitting to be done in order to carry into full operation and effect the objects and purposes of the Association".

The Corps was set up by the Association in 1904, and operates under the direction of the Council in accordance with General Regulations (No. 6/2 of process). The units of the Corps are sections and companies. Each company has officers, including a Commandant who is responsible for the training, discipline and administration of the company. Officers are to be nominated by election by the members of the company, and the names are to be submitted to Headquarters for approval. The appointment of officers is made by the Commandant-in-Chief of the Corps. All appointments of officers are subject to confirmation annually by the company and Headquarters.

In 1997 an employee of the Association, a Miss McKinnon, was dismissed and brought a complaint of unfair dismissal and breach of contract before an Industrial Tribunal. The dismissal had initially been effected by the Chief Executive of the Association, but had thereafter been ratified by the Council. The petitioner was present at the meeting of the Council at which that decision was taken, and voted against ratification. Subsequently, at the request of Miss McKinnon, the petitioner and another member of the Council, Mr Roy Scott, attended the hearing before the Tribunal, and gave evidence as witnesses for her. The petitioner had earlier furnished Miss McKinnon with a written reference, and his position was that he had been called as a witness to amplify what he said in it. It appears, however, that he also gave evidence in support of the view that the Chief Executive had not had power to terminate Miss McKinnon's contract. The Tribunal hearing took place on 25 August and 1 and 2 October 1997, and the Tribunal's decision (No. 7/6 of process), which found that there had been breach of contract on the part of the Association and made a small monetary award, was issued on 25 November 1997. It is evident from the terms of the decision (at page 6E) that the Tribunal regarded the petitioner's evidence about the extent of the Chief Executive's powers as irrelevant in light of the ratification of the dismissal by the Council.

A meeting of the Council was called for 21 January 1998, and one of the items on the agenda for the meeting was a report on the Industrial Tribunal proceedings. The petitioner was on holiday abroad at the time of the meeting, and had intimated his apology for absence. Before the meeting, three members of the Council had written to the Chairman expressing concern about the role of the petitioner in the Industrial Tribunal proceedings. These letters were not circulated to members of the Council in advance of the meeting, and in particular were not copied to the petitioner. As the petitioner avers, he "was not advised of any accusation of wrongdoing that was levelled against him prior to 21 January 1998. He was not told that a proposal would be made to the Council seeking to demand his resignation. He was not told that any disciplinary measures were being considered against him."

As appears from the minutes of the meeting (No. 6/3 of process) the Association's solicitor was present to answer questions about the Tribunal proceedings. The three letters above mentioned (copies of which were subsequently appended to the minutes of the meeting and form part of No. 6/3 of process) were read out to the meeting by the Chairman. The authors of two of the letters, Mr R Wilson and Professor Sir Michael Bond, spoke in amplification of the points which they had made in writing. Their view may be summarised as being that it was unacceptable for a member of Council to support Miss McKinnon's case against the Association while remaining a member of the Council which had ratified the dismissal. Sir Michael's letter made reference to the concept of cabinet responsibility. Other members of the Council, including the Commandant-in-Chief, expressed the view that the petitioner's behaviour had been unacceptable and that he should resign. One member asked "if there were any sanctions available with regard to dismissing Council Members", and the solicitor responded in the negative. Another member said that he felt that it was unfortunate that the two Council members whose conduct was under criticism were not present at the meeting, to which Sir Michael responded that the issue was a constitutional matter and that the two members had acted unconstitutionally. Sir Michael then made the proposal which resulted in the first decision. The Commandant-in-Chief seconded it, and it was carried by a majority of eleven to seven with three abstentions.

Notwithstanding the terms of the request made by the Council, the petitioner has not resigned from the Council or from membership of the Association. At the next meeting of the Council on 22 April 1998 (the minutes of which are No. 7/5 of process) the minutes of the meeting of 21 January were approved. In addition the petitioner made a statement, which forms part of No. 7/5 of process. In it he maintained that he had acted properly in giving evidence before the Tribunal, and complained that the way in which the Council had dealt with the matter on 21 January had contravened the rules of natural justice. He concluded with the sentence:

It appears, however, that he moved no substantive motion to that effect. The minutes merely record that he made his statement.

At the annual business meeting of the Burntisland Company of the Corps, in pursuance of the provisions of the General Regulations requiring annual confirmation of the appointment of officers (Regulation E3), the petitioner was nominated as Commandant of the company. His name, along with those of the other officers nominated, was submitted to Headquarters on the appropriate form (No. 6/5 of process), and on 16 July 1998 the Commandant-in-Chief confirmed the nomination of the other officers but in respect of the petitioner minuted -

Mr Dunlop began his submissions for the petitioner by recognising that before turning to the grounds on which judicial review of the first and second decisions was sought, it was necessary for him to demonstrate (i) that decisions of the Council and the Commandant-in-Chief were subject to the supervisory jurisdiction of the court, (ii) that there had been decisions which were amenable to judicial review, (iii) that no alternative remedy was available to the petitioner and (iv) that the petitioner had sufficient title and interest to bring this petition. In relation to the first of these points, he referred to West v Secretary of State for Scotland 1992 SC 385, per Lord President Hope at 412-3. He submitted that, as had been held to be the case in similar circumstances in Naik v University of Stirling 1994 SLT 449, the necessary tri-partite relationship was to be found constituted by the Association's Royal Charter. Mr Cheyne for the respondents did not dispute that that was so. Nor did he dispute Mr Dunlop's third point, that there was no alternative remedy available to the petitioner. Mr Dunlop's fourth point, which he made under reference to Gunstone v Scottish Women's Amateur Athletic Association 1987 SLT 611, was also uncontroversial. That left, as a matter of significant dispute, the question, which arose sharply in relation to the resolution passed by the Council on 21 January, whether there had been a decision of such a nature as to be susceptible to judicial review. It was not disputed that the second decision was so susceptible.

Mr Dunlop anticipated that the respondents' position would be that the resolution carried at the Council meeting on 21 January did not amount to a decision, and was no more than an expression of opinion on the part of the Council which had no practical effect on the petitioner. He referred to the unreported case of Maguire and Others, Petitioners (9 March 1994) in which Lord Marnoch said:

The part of the passage in Lord Diplock's speech in the CCSU case to which Lord Marnoch referred, and on which Mr Dunlop relied, was in the following terms:

Mr Dunlop accepted that the decision of 21 January did not have the effect of removing the petitioner from the Council or from membership of the Association. He submitted, however, that it was in effect a disciplinary measure, the only one available to the Council, given the advice which they had received to the effect that there was no provision for dismissing a member of Council. It had the immediate effect of undermining his position on the Council. In addition, it had the indirect effect of providing the ground for the Commandant-in-Chief's decision of 16 July. It was therefore properly to be seen as more than a mere statement of disapproval. It was tantamount to a finding of guilt. Analysing the terms of the resolution, it could be seen to comprise three parts, (i) an expression of the Council's opinion that the petitioner had behaved in a manner which was detrimental to the Association; (ii) a record of the fact that as a result he had lost the confidence of the Council; and (iii) a sanction, in the form of a request that he withdraw from membership of the Council and the Association. It thus amounted to a finding that he had been guilty of conduct which was detrimental to the Association and which, in the judgment of the Council, justified not only his ceasing to be a member of the Council but also his ceasing even to be a member of the Association. The disciplinary nature of the resolution was further underlined by the terms of the Minutes, in which the question of whether dismissal was possible was canvassed.

As Mr Dunlop had anticipated, Mr Cheyne's submission was that, properly understood, the resolution of 21 January did not constitute a reviewable decision. In its terms, the resolution (i) expressed a view, and (ii) requested action on the part of the petitioner. It did not itself have any executive effect. It had no clear-cut consequences affecting the position of the petitioner. In particular it had no compulsory effect. If he chose (as he did) not to respond to the request of the Council, the petitioner remained both a member of the Council and a member of the Association. The resolution was thus not disciplinary in its effect. It imposed no sanction. Moreover, it was not irrevocable. The subject could have been revisited at the next meeting of the Council, if the petitioner had chosen to move a substantive motion to that effect. In the event, he took no steps to rectify the attack on his good standing. The Council did not purport to make a decision of a judicial or quasi-judicial nature. It could be seen that the notion of making a quasi-judicial decision was not in the minds of the members of the Council. There was no arraignment, no accused person. The petitioner remained a member of the Council and of the Association.

I would not wish to be taken to accept that the availability of judicial review in all cases depends on the making of a "decision", if that word is to be narrowly construed. In West the Lord President referred on more than one occasion (at 413) to "acts or decisions", and I prefer that broader formulation. For the purpose of the present case, however, the matter can in my view be addressed by asking whether the Council can properly be regarded as having made a decision. It is quite clear that in form the resolution expressed an opinion formed by the Council, and went on to address a request for action to the petitioner. It did not directly affect the petitioner's continued membership of the Council or of the Association. But in my view to concentrate on the absence of an imposed penalty is to misjudge the significance and effect of the resolution. It is in my view clear from the terms of the letters written to the Chairman and read out at the meeting that there was an accusation against the petitioner. That accusation was that he had acted in an unacceptable, even an improper or unconstitutional, way in connection with the Industrial Tribunal hearing. Whatever the merit of those views may have been, and irrespective of whether the Council members proceeded on a correct understanding of what the petitioner had done, it seems to me to be clear that a charge was laid against him. I do not accept that there was no notion of disciplinary action in the minds of the members of the Council. It seems to me to be clear, from the discussion of whether there was available a procedure for dismissal, that the question of punishment for perceived wrongdoing was under consideration. But even if I am wrong about that, it seems to me that it is appropriate to judge the effect of what the Council did objectively rather than by reference to what they thought the nature of their proceedings was. Faced with an assertion that the petitioner had acted wrongly, the Council proceeded to a vote and the view that the petitioner's behaviour was "detrimental to the Association" was carried. That seems to me to be a clear judgment of the quality of the petitioner's conduct, the upholding of the accusation against him. As Mr Dunlop put it, it was a finding of guilt. It was when they came to the question of "sentence" that the members of the Council found themselves in difficulty because of the unavailability of any power to remove the petitioner from the Council. They therefore contented themselves with a request to the petitioner that he withdraw from the Council and the Association. There was thus no imposed penalty. But it seems to me that in stating that the petitioner had lost the confidence of the Council, and in identifying as the appropriate consequences (albeit ones which they could not compel) that the petitioner should not only cease to be a member of the Council, but also leave the Association altogether, the Council were expressing a very clear qualitative judgment about the gravity of the petitioner's behaviour. While there was no executive decision terminating the petitioner's membership of the Council and the Association, I am of opinion that the terms of the resolution were such as to have a very clear effect on his standing within the Association. Looking at the matter realistically rather than formally, I am of opinion that the resolution was clearly disciplinary or punitive in its effect. It amounted to a verdict that he had been guilty of behaviour detrimental to the Association. It constituted a formal entry to that effect in the records of the Association. The fact that no compulsory punishment as such was imposed does not, in my view, deprive the resolution of the character of a decision seriously affecting the position of the petitioner. I am therefore of opinion that it was a decision which is amenable to judicial review.

The first ground on which the pursuer seeks to attack the validity of the first decision is that the Council failed to comply with the rules of natural justice. In particular, the submission was that the Council failed to observe the maxim audi alteram partem. They were aware from his apology for absence that he was not able to be at the meeting. Despite the dates of the letters appended to No. 6/3 of process, he was not given sight of them or advised that any accusation was to be brought against him. The matter was discussed and decided upon in his absence without hearing any representations from him or giving him any opportunity to defend himself. Mr Cheyne very fairly accepted that, if I held that the resolution of 21 January constituted a decision which was amenable to judicial review, the validity of the decision would be liable to be tested by reference to the rules of natural justice, and he did not maintain that if these rules applied the maxim audi alteram partem had been observed. That concession was in my opinion rightly made. Having held that the resolution of 21 January was a decision which had a material practical effect on the position and standing of the petitioner within the Council and the Association, and was indeed a decision quite clearly of a quasi-judicial nature, I have no hesitation in holding that that decision was vitiated by the Council's failure to acquaint the petitioner with the criticism which was made of him, and its failure to allow him the opportunity of stating his defence before they proceeded to judgment.

Mr Dunlop also submitted that the first decision was invalid on the ground of unreasonableness or irrationality (CCSU per Lord Diplock at 410F; Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; West at 402). The particular criticism was that the Council had taken into account an irrelevant consideration. The Council had proceeded on the ground of the petitioner's involvement in the Industrial Tribunal hearing as a witness for Miss McKinnon. That did not, per se, support any inference that he had acted improperly. Although he attended voluntarily as a witness, he was compellable, and in giving evidence he was simply performing his civic duty. His so acting was irrelevant to his fitness to be a member of the Council or of the Association. It seems to me that if the Council had clearly acted on the simple view that the mere fact of giving evidence before the Industrial Tribunal evidenced unacceptable conduct on the part of the petitioner, there might have been some force in the criticism that their decision lacked a rational basis. The position is, however, in my view more complex than that. On a fair reading of the proceedings at the meeting and the letters which were read to the meeting, it seems to me to be clear that the substance of the criticism was that the pursuer had gone beyond the giving of disinterested evidence, and had supported Miss McKinnon in her case against the Association in a way which was incompatible with continued membership of the Council. While this is the one aspect of the case on which there is a dispute as to matters of fact, since the petitioner and the respondents advance differing accounts of the role which he played in the Industrial Tribunal proceedings, I do not consider that evidence would be required to enable me to deal with the unreasonableness case. On the material which is before me I feel able to conclude that, whatever flaws or misunderstandings there may have been in the Council's approach to the matter, it did not fall into the simple error of which the petitioner accuses it, namely of thinking that the mere fact that he gave evidence before the Tribunal supported an inference that he had acted unacceptably. In statement 13 of the petition it is averred that the Council also failed to take into account a relevant consideration, namely the long and distinguished service of the petitioner to the Association and the Corps, but Mr Dunlop did not seek to develop that point in argument. I need therefore say nothing more about it. As the reasonableness case was argued before me, I am not persuaded that there is any ground on which I could properly conclude that the Council had acted unreasonably.

Since Mr Cheyne accepted that the second decision proceeded wholly on the basis of the fact that the petitioner had been asked by the Council to resign from the Association, and that it followed that if the first decision was reduced, the necessary substratum of the second decision would be swept away, and it too would fall to be reduced, it is not necessary to discuss in detail the separate arguments advanced in connection with the latter decision. If it is set aside, it follows that the Commandant-in-Chief should be ordained to consider of new the approval of the petitioner's nomination.

In the result, therefore, I hold that the first decision was a decision of such a nature and effect on the petitioner as to be susceptible to judicial review at his instance; that it was a decision of a quasi-judicial nature in making which the Council was obliged to observe the rules of natural justice, and in particular to inform the petitioner of the criticism levelled at his conduct and afford him an opportunity to be heard in his defence before the decision was made; that the Council failed so to do; that the first decision was therefore invalid and falls to be reduced; that the second decision falls with the first, and therefore should also be reduced; and that the Commandant-in-Chief should be ordained to consider of new whether to approve the nomination of the petitioner as Commandant of the Burntisland Company of the Corps.

I shall therefore sustain the petitioner's first plea-in-law so far as founded on natural justice, sustain the petitioner's second plea-in-law, repel the respondents' pleas-in-law, and grant decree of reduction as sought in heads (i) and (ii) of statement 3 of the petition and an order upon the second respondent in terms of head (iii) of that statement.