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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Newtongrange Branch Of The Scottish National Party, Re Application for Judicial Review [1999] ScotCS 215 (1 September 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/215.html Cite as: [1999] ScotCS 215

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In this petition for judicial review the petitioners are said to be the Newtongrange Branch of the Scottish National Party and three named persons, who are said to be the Convenor, Secretary and Treasurer thereof, who sue as representing the branch and as individuals. The respondents are designed as the Scottish National Party. The subject matter of the petition arises out of what is described as a pretended decision of the National Executive Committee of the respondents, made on or about 10 July 1999, suspending the Newtongrange Branch and removing all voting rights pending an investigation. The decision complained of was communicated by the National Secretary of the respondents to the Secretary of the Newtongrange Branch, Ms Donna Wallace, by letter dated 13 July 1999, 6/1 of process. That letter is in the following terms:

On the same date, the National Secretary of the respondents wrote to all members of the Newtongrange Branch, informing them of the suspension "pending investigations into complaints by Midlothian CA concerning the conduct of Newtongrange Branch's business".

In this petition, the petitioners seek: (1) declarator that the pretended decision of 10 July 1999 was unlawful and the quashing thereof; (2) suspension ad interim of the said pretended decision; and (3) interdict to prevent any future suspension of the petitioners from the Party except in accordance with Party Rules as set out in its Constitution and Rules from time to time. In the petition it is stated that the petitioner's seek to challenge the decision concerned upon two grounds: (i) that the decision of 10 July 1999 to suspend the Newtongrange Branch of the Scottish National Party was unlawful and ultra vires; and (ii) that the said decision was unreasonable and proceeded contrary to the requirements of natural justice and the legitimate expectations of the petitioners.

When this matter came before me in the vacation court on 31 August 1999, counsel for the petitioners said that his motion was for a first order and for interim suspension of the decision of the National Executive Committee of the respondents, dated 10 July 1999. In elaborating the petitioners' position, counsel for the petitioners said that he would advance three reasons why the purported decision of 10 July 1999 was unlawful. These were: (1) because that decision was contrary to the Constitution of the respondents; (2) because no right to be heard had been afforded to the petitioners, prior to the making of the decision; and (3) because no reasons had been given to justify the course taken.

Counsel for the petitioners explained that the respondents were a voluntary unincorporated association operating under Rules contained in a Constitution and Rules 1998 - 1999, a copy of which was 6/2 of process. The petitioners were the Newtongrange Branch and three officer bearers thereof, who were branch members. The office bearers of that branch had had a meeting on 31 May 1999 authorising the taking of action on their behalf.

It was observed that it might have been thought that it was extraordinary for members of a political party to seek the assistance of the court to review the internal proceedings of that party. Such a course was however the proper one, as could be seen from certain previous decisions, reported and unreported. In particular, in Brown v The Executive Committee of the Edinburgh District Labour Party 1995 S.L.T. 985, the court intervened in the proceedings of a political party; a similar course had been followed in the unreported case of Lally v The National Constitutional Committee of the Labour Party. In this connection, it was relevant to recognise the scope of the remedy of judicial review, as explained in West v The Secretary of State for Scotland 1992 S.C. 385 at page 412. It was submitted that the respondents were such a body as was mentioned in proposition 1 on that page. Dealing with the issue of the status of the Newtongrange Branch of the respondents, counsel for the petitioners submitted that that Branch had the capacity to sue the respondents, as a voluntary unincorporated association, acting through its office bearers. That had to be so or otherwise no remedy would be available.

Counsel for the petitioners next proceeded to examine certain features of the respondents' Constitution, 6/2 of process. In particular, he drew attention to clause 52 thereof, which set out the powers of Branches. It showed that each Branch had a Constitution of its own and full authority to conduct its own affairs. Clause 31 showed that the respondents were not liable for any debts contracted by Branches. The correct view was that a Branch and, in particular, the petitioners, had an independent and separate existence apart from the respondents.

Counsel for the petitioners explained that there were three practical reasons why interim suspension of the decision complained of was sought. In the first place, it was sought to enable the petitioners to be notified of the date of the Annual General Meeting of the Midlothian Constituency Association of the respondents. If the decision concerned was not suspended, no such notification would occur. That was a proper inference from the terms of 6/1 of process. This was an important consideration because the Midlothian Constituency Association Annual General Meeting would nominate persons to be delegates at the respondents' Annual Conference, which was due to commence on 23 September 1999. Unless suspension of the decision concerned was granted, the petitioners' Branch members could not attend that meeting and make nominations for the positions of delegates. The background was that, in terms of clause 68(b) of the respondents' Constitution, four delegates from each constituency association could attend the Annual Conference, provided that all affiliation fees, levies and other dues had been paid in full. That might not be the position at the present time, but the background to the matter was that the Newtongrange Branch had been suspended previously, in September 1998, in similar circumstances for an indefinite period, no reason having been given for that course of action. Subsequently the Branch had been allowed to recommence its activities and was re-launched in February 1999. In the circumstances, having regard to that period of suspension, it was unclear what monies were owed to the respondents. In this connection reference was made to clauses 46 and 69 of the Constitution, which provided for diminished representation where all levies and dues had not been paid. Further practical reasons justifying the motion for interim suspension were that it was necessary to enable members of the Newtongrange Branch to carry on their activities as members and, in particular, nominate delegates to the Annual Conference. Furthermore, interim suspension was necessary to enable members of the Branch to attend as individual members at the Annual Conference.

Turning to the issue of whether the petitioners had shown a prima facie case for interim suspension, it was submitted that there were three grounds of criticism of the purported decision. In the first place, it was illegal, since it involved a breach of clause 65 of the respondents' Constitution. It appeared from the letters of 13 July 1999 that the purported suspension decided upon on 10 July 1999 was one pending investigations into certain matters. Clause 65 of the respondents' Constitution did not permit of such a suspension. The words used in clause 65 were: "It shall be within the power of the National Executive Committee to ... suspend for a specified period ... any Branch ...". Suspension pending investigations was not suspension for a "specified period".

In the second place, it was submitted that the purported decision was unlawful because it had denied the Newtongrange Branch the opportunity of a hearing, prior to the suspension being imposed. What ought to have happened was that notice should have been given to the Branch of the proposed grounds for suspension and an opportunity to refute those grounds should have been afforded, prior to the suspension being imposed.

In the third place, it was submitted that the purported decision was illegal because no specific reasons had been given for the suspension. The letter dated 13 July 1999 sent to the Secretary of the Newtongrange Branch simply spoke of "the continuing disagreement between Newtongrange Branch and Midlothian CA". That was not an adequate reason. The letter of the same date to members of the Newtongrange Branch spoke of "complaints by Midlothian CA concerning the conduct of Newtongrange Branch's business". Once again, that was not an adequate reason for the action taken. In connection with the obligation to give reasons for a decision, counsel for the petitioners relied upon Regina v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All.E.R. 310, at pages 318-326.

Turning to the question of the balance of convenience, counsel for the petitioners submitted that the remedy of appeal, provided for in clauses 66 and 67 of the respondents' Constitution, was nugatory. As averred in paragraph 7 of the petition, when the Branch was suspended in September 1998, in circumstances which were also illegal, an attempt had been made by the Branch to appeal against that decision. However, the letter of appeal was ignored. The appeal machinery was simply not operated by the respondents. The effect of the decision complained of was to prevent the Newtongrange Branch from operating as a Branch, participating in Constituency Association meetings and otherwise functioning in a normal manner. The effect of the suspension was to isolate the members of the Branch in the respondents' organisation and to prevent them from participating fully as members. In all the circumstances, interim suspension ought to be granted.

Senior counsel for the respondents moved me to refuse the petitioners' motion for a first order and interim suspension. In introducing his submissions, he made certain preliminary points. In the first place, the petition was of some novelty; he said that this was the first occasion in Scotland, or elsewhere in the United Kingdom, on which an attempt had been made to have the court judicially review the internal management of a political party. In the second place, this was the first occasion on which a branch of any political party, or similar body had sued the parent body, on the view that there was between them a justiciable issue. In the third place, the situation was the more extraordinary because he contended that the petitioners were non-existent in law.

Developing the last mentioned point, attention was focused on paragraph 5 of the petition, in which it was averred that the petitioners were a Branch of the respondents in Midlothian. The presentation of the petition by the petitioners therefore immediately raised the status of a Branch of the respondents as an issue. The petition proceeded upon the assumption that the petitioners were an unincorporated voluntary association, represented by its office bearers. It had to be appreciated that the respondents themselves were an unincorporated voluntary association of members. The respondents had not been correctly designated or sued in the present proceedings, but no point was taken as to that, since the error could be cured. It was also important to appreciate that nowhere in the petition was there a complaint of a legal wrong having been committed against a natural person although it was recognised that the three named individuals who were stated to be office bearers of the Newtongrange Branch claimed to be proceeding, not only as representative of the Branch, but also as individuals.

In connection with the submission that the petitioners did not exist in law, it was contended that the fact that they possessed a name was of no significance. In that connection reference was made to Lennox v The Scottish Branch of the British Show Jumping Association 1996 S.L.T. 353. In that case, following upon a consideration of the defenders' Rules and the Articles of Association of the British Show Jumping Association, a company limited by guarantee, the court had held that the designated defenders had no existence separate from the British Show Jumping Association; accordingly the action had been dismissed as incompetent. At page 355, it was pointed out that membership of the Scottish Branch did not depend on those persons who had agreed to associate together for the purposes of the Scottish Branch. On the contrary it depended upon membership of the British Show Jumping Association, as determined in accordance with its Articles of Association and Rules. Accordingly there was no separate contractual agreement inter se by members of the Scottish Branch. In the present case it was necessary to examine the respondents' Constitution, in order to reach a conclusion as to the nature of a Branch thereof. Clauses 5, 7 and 10 of the Constitution, all of which dealt with membership of the respondents, showed that membership was a matter for the respondents themselves. Furthermore, clause 35 showed that the Headquarters of the respondents had the ultimate right to decide who was to be a member of a Branch. If a Branch did not have control over its own membership, it could not be regarded as a voluntary association having a separate existence. Indeed, consideration of clause 12(b) of the Constitution showed that a Branch could not come into being until it had been recognised by the National Executive Committee of the respondents. Clause 50 dealt with the disposal of Branch property, in the event of a Branch going out of existence or being disbanded; in such a situation, the property accrued to the respondents. That state of affairs also was inconsistent with the existence of a Branch as a voluntary association separate from the respondents. In addition, while the power to disband a branch was not specifically conferred upon any central organ of the respondents, clause 50 inferentially recognised the power of the National Council or National Conference to disband a Branch. Once again, that power was inconsistent with the concept that the Branch had a separate existence as a voluntary association. Clauses 17 and 18 of the Constitution made it clear that the National Conference and the National Council held the supreme power in the respondents' organisation, which included the power to disband Branches. Clause 21 explained the position of the National Executive Committee; it was responsible for a range of functions, including general administration. That included a power to suspend a Branch pending an investigation into its affairs, quite apart from the power to suspend, as a punitive sanction, expressly conferred by clause 65.

Counsel for the respondents argued that what had been done by the National Executive Committee on 10 July 1999 was not done under clause 65, but was rather an administrative suspension of the Branch, pending an investigation into the subject matter of complaints. In that connection, reliance was placed upon Lewis v Heffer &c [1978] 1 W.L.R. 1061. At pages 1072-3, in the judgment of Lord Denning, M.R., the distinction was recognised between a suspension by way of punishment and a suspension as an act of good administration pending the inquiry into a situation giving rise to concern.

Reverting to the issue of the status of a Branch of the respondents, counsel for the respondents drew attention to the terms of clause 52 of the Constitution. That clause made it clear that a Branch did not even have the power to set its own Rules; any Branch Constitution required to be approved by the National Executive Committee. Furthermore, proposals approved by the National Council for inclusion in Branch Constitutions were deemed to be incorporated in all Branch Constitutions with effect from their approval. Those provisions were completely inconsistent with the notion of a Branch as a separate voluntary association. All these various considerations led inevitably to the conclusion that a Branch, was no more than a part of the respondents' structure or organisation. Thus a Branch had no legal capacity to seek judicial review of the respondents' proceedings.

Recognising that the three named office bearers of the Newtongrange Branch sued as individuals as well as office bearers, it was necessary to consider whether they had averred a wrong done or apprehended to be done to them. It was submitted that they had not. What had occurred on 10 July 1999 was simply the making of an administrative suspension by the National Executive Committee pending investigations, a lawful act. If that was correct, it entailed that the petitioners' arguments relating to the lack of a hearing and the lack of specific grounds for suspension disappeared; in Lewis v Heffer, it was recognised that such requirements could not attach to what might be described as an administrative suspension pending an inquiry into matters of concern. In that connection reference was made to pages 1075-8.

Turning finally to the balance of convenience, counsel for the respondents submitted that it favoured refusal of interim suspension. As regards the point made concerning the sending of delegates to the Annual Conference, quite apart from the suspension, the Branch could not have sent such delegates since it was in arrears with its levies and dues. In that connection reference was made to clause 69 of the respondents' Constitution. In any event, the Annual General Meeting of the Midlothian Constituency Association had not been held. Four weeks notice was necessary for the holding of such a meeting. Having regard to the present date, no such meeting could have been held before the commencement of the Annual Conference on 23 September 1999. Accordingly the petitioners' complaint relating to a loss of influence over the selection of Conference delegates had no substance. Looking at the position of the individual petitioners as individuals, it was plain that they had not been suspended as members of the respondents. In short, there was nothing of which they could complain. All that had happened was that they were no longer members of a Branch.

As I understood it, counsel for the petitioners accepted that if the Newtongrange Branch of the respondents was to have the capacity to sue in these proceedings, it was necessary for him to show that that Branch was a voluntary association separate from the respondents. In my opinion that concession was inevitable. There being no suggestion that the Newtongrange Branch had any legal persona of its own, it could act only if it was such an association, represented by its office bearers. In connection with the issue of the capacity of the Newtongrange Branch of the respondents to sue, I should make clear that I agree with the submission made by counsel for the respondents to the effect that the fact that the Branch possessed a name was not of significance. In Lennox v Scottish Branch of the British Show Jumping Association, it was recognised that, although the defenders possessed the name mentioned, nevertheless they had no existence separate from the British Show Jumping Association.

In these circumstances, the first question which I must decide is whether the Newtongrange Branch of the respondents is an unincorporated association separate from the respondents, the Scottish National Party. The premise that it is such an association was an essential ingredient of the argument presented by counsel for the petitioners. It is appropriate that I should mention at this stage that the respondents themselves were said to be an unincorporated association, although they had not been correctly designed or sued as such in the present proceedings. However, intervening, counsel for the respondents made clear that he took no point in relation to that matter, since the error concerned would have been capable of having been cured by amendment.

In order to address the first question before me, in my opinion, it is necessary to examine the provisions of the Constitution of the respondents, with a view to elucidating the nature of a Branch of that body, membership of a Branch and of that body and the relationship between the respondents and any Branch. Turning first of all to the section of the Constitution, which deals with membership, one observes from clause 5 that:

Examination of clause 35 shows that it is there provided that:

From these provisions it appears to me that membership of a Branch of the respondents is a benefit which it is not within the power of the Branch itself alone to confer. The Headquarters of the respondents have the power to decide that a proposed member is ineligible for membership; in that event the membership is invalid. All that a Branch may do is to approve of the membership of an individual provisionally. It therefore appears to me that these provisions militate against the concept of a Branch being a voluntary unincorporated association of members separate from the respondents themselves, since it is to be supposed that any such association would have the power to determine the identity of its own membership. My view in that regard is confirmed by an examination of the provisions of clause 7 of the Constitution. It provides:

It appears from this provision that the expulsion of members of the respondents is a matter for their central authorities. Plainly that is in conflict with the idea of a Branch itself being an independent voluntary association.

Turning to that part of the Constitution of the respondents which deals with Organisation, it appears to me that the terms of clause 12 are important. It provides, inter alia, in sub-clause (b):

It is plain from this provision that the very existence of a Branch of the respondents is dependent upon the approval of the list of members and the granting of recognition to the Branch by the National Executive Committee. Once again, in my opinion, this is a powerful indication that a Branch cannot properly be seen as a voluntary unincorporated association separate from the respondents.

Further confirmation of the correctness of the respondents' position in this regard, in my opinion, can be found in clauses 17, 18 and 50 of their Constitution. Clause 17(a) provides that:

Clause 18(a) provides:

Clause 50 of the respondents' Constitution, dealing in Part Two with Branches and Groups, provides:

In my opinion, it is clear from the terms of these clauses that it is within the power of the National Council or National Conference to disband any Branch of the respondents, with the consequences upon the funds and property of that Branch set forth in clause 50. Thus the very existence of a Branch may be brought to an end by those other organs of the respondents. It appears to me that that circumstance points strongly in favour of the view that a Branch is no more than another organ or part of the respondents. It would be inconsistent with the concept of a Branch being a voluntary unincorporated association separate from the respondents that it could be disbanded by an external body. Furthermore, the destination of the property of any disbanded or seceding Branch provided for in clause 50, points in a similar direction. If the Branch were truly a body separate from the respondents, one would have expected that that body would have been empowered to dispose of its own funds and property as it thought fit upon disbandment.

In my opinion, a similar conclusion is to be reached from a consideration of the terms of clause 37 of the Constitution, which deals with the suspension and expulsion of members of the Party. Summarising those provisions, it appears that a Branch may suspend a member, but that that suspension is to be of no effect unless notification of it is made to Headquarters. In addition, a member suspended from a Branch may appeal to the National Executive Committee. As regards expulsion, Branches do not have the power to expel, but merely the power to request that a member be expelled from the Party in accordance with clause 65. It appears to me that these provisions, once again, demonstrate that a Branch is an integral part of the respondents, as opposed to a body separate from them. In the whole circumstances, the conclusion which I have reached is that, in terms of the Constitution of the respondents, a Branch has no existence separate from that of the respondents themselves. It cannot properly be seen as a voluntary unincorporated association separate from the respondents. In my view, a Branch of the respondents is simply a part or organ of their organisation, through which they fulfil their purposes. It accordingly follows that the Newtongrange Branch of the respondents have no capacity to sue them in this petition.

As has been pointed out, this petition is not only at the instance of the Newtongrange Branch of the Scottish National Party, but also at the instance of three named persons who are said to hold office within that Branch, as individuals. It is therefore necessary for me to consider their position separately, since, as natural persons, they have capacity to sue. In Brown v The Executive Committee of Edinburgh Labour Party, at page 989, I had occasion to set forth the circumstances in which the court might interfere in the proceedings of a voluntary association and, in particular, a political party. In that case I quoted the words of Lord Justice Clerk Aitchison in MacDonald v Burns 1940 S.C. 376 at page 383. There he said:

Going on to consider what these extraordinary circumstances might be, he said that, speaking generally, there were two situations in which the courts would entertain actions:

With those criteria in mind, I have scrutinised the averments made by the petitioners in the present petition with care. I can find nothing in them which discloses the occurrence of events constituting or giving rise to the apprehension of a wrong of the kind defined by Lord Justice Clerk Aitchison, which would justify an interference by the court in the affairs of the respondents. As was pointed out by counsel for the respondents, there are no averments of any wrong done to the three named petitioners who are natural persons. Their membership of the respondents has not been suspended, nor have they been expelled from membership. Their civil rights and patrimonial interests are not said to have been affected by anything done by the respondents. Furthermore, no criticism of any tribunal of the respondents has been made affecting their interests. In these circumstances, while of course those petitioners have ordinary capacity to sue, I find no relevant averments in the petition relating to their position as individuals, as opposed to that of the Newtongrange Branch. Indeed, it is perhaps, not surprising that that is so, since, in paragraph 5 of the petition it is affirmed that the petitioners are a Branch of the respondents. No attempt is made in the petition to focus upon any alleged legal wrong done, or apprehended to be done, to the individual petitioners themselves. For all of these reasons, I consider that, in so far as the petition is brought at the instance of the Newtongrange Branch, it is incompetent, and in so far as it is brought at the instance of three named persons as individuals, it is unsupported by any relevant averments. In all of these circumstances, I shall refuse the petitioners' motion for a first order and for interim suspension of the decision of the National Executive Committee complained of.

Although what I have just expressed as my conclusion is sufficient for the disposal of this petition, it is appropriate that I should express my opinion upon the merits of the petitioners' case. The argument presented proceeded, in the first instance, on the premise that the suspension of the Newtongrange Branch decided upon by the National Executive Committee on 10 July 1999 was a suspension under clause 65 of the Constitution. In the light of the submissions made to me by counsel for the respondents, I have come to be of the opinion that that premise is incorrect. In my view, it is clear from an examination of clause 65 that the power to suspend conferred by it is a disciplinary power. Clause 65 appears in a part of the respondents' Constitution which is concerned with Party Discipline. It provides for the imposition by the National Executive Committee of several sanctions including admonition, suspension for a specified period, or expulsion, of any Branch, Sub-branch, Constituency Association, or other organisation, or any member of the Party in consequence of any contravention of the Constitution and Rules, or of any decision made thereunder, or of conduct inimical to the interests of the Party. It is plain from that provision that suspension as a disciplinary measure may only be decided upon "for a specified period". In the present case, as appears from the letters 6/1 of process, the suspension involved here was suspension "pending a new investigation" to quote the letter of the National Secretary dated 13 July 1999 to Ms. Donna Wallace, or suspension "pending investigations into complaints by Midlothian CA concerning the conduct of Newtongrange Branch's business", quoting the words of the National Secretary to all members of the Newtongrange Branch, also dated 13 July 1999. In my view, the suspension which has been decided upon here by the National Executive Committee is what might be properly described as an administrative suspension pending inquiry into controversial circumstances. The position of the National Executive Committee, in the organisation of the Party, is explained in clause 21 of the Constitution. It provides:

In my opinion, it would therefore be within the powers of the National Executive Committee, as a matter of administration for which it is responsible, to suspend a Branch pending an investigation into controversial matters of concern. The concept of an administrative suspension, in my view, is well recognised, as appears from observations in Lewis v Heffer &c, particularly by the Master of the Rolls, Lord Denning at pages 1072-3 and Ormrod, L.J., at pages 1075-7. Furthermore, Geoffrey Lane, L.J., at page 1078 recognised the expediency of administrative suspension in the kind of circumstances concerned. Against that background, in my opinion, the contention that an administrative suspension could only be decided upon after notice had been given of the grounds of suspension to the Branch concerned and after an opportunity had been afforded to that Branch to make representations on the matter is quite plainly unsustainable. In this kind of situation, at an early stage when action of some sort requires to be taken and taken firmly, in order to set the wheels of investigation in motion, in my view, natural justice would not demand the steps concerned. In this connection I refer to the observations of Geoffrey Lane, L.J., just mentioned. Indeed, where an administrative suspension is decided upon, pending an investigation into some controversial circumstances, it would plainly be inappropriate to hold a hearing into those circumstances, separate from the contemplated investigation itself. As regards the matter of the stating of grounds for such a suspension, it would hardly be practicable, in advance of the outcome of the contemplated investigation, to do more than was done here, that is to state that an investigation was to be held into the circumstances giving rise to concern. In these circumstances, if I had concluded that the Newtongrange Branch of the Party had had capacity to sue, I would have concluded that they had demonstrated no prima facie case for interference by the court.

As regards the balance of convenience, I wish to say very little, since the matter is hypothetical. Suffice it to say that I was impressed by the reasons advanced by counsel for the respondents as to why the balance of convenience should favour them. On account of the acknowledged failure of the Newtongrange Branch to pay any part of the fees and levies due, they would, in any event, not have been entitled to representation at any Annual or Special Conference. Furthermore, no Annual General Meeting of the Midlothian Constituency Association could have been convened prior to the Annual Conference, due to commence on 23 September 1999, in accordance with the Rules, to make decisions upon the identity of delegates.