ON APPEAL FROM Middlesborough District Registry
His Honour Judge Fox QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
SIR MARK POTTER
| (1) UK INDEPENDENCE PARTY LIMITED
|(2) GORDON HOWARD PARKIN
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Alan Hardy (In Person)
Hearing date: 21 July 2011
Crown Copyright ©
Sir Mark Potter:
"there be judgment for the claimant in the sum of £750.00 (total) against each defendant (that is Gordon H Parkin, UK Independent Party Limited and Stockton-on-Tees Branch of UK Independent Party Limited) with no order as to costs and a Declaration that upon the claimant's payment to the 2nd Defendant of £10.00 he be a member of the 2nd Defendant's Party and the 3rd Defendant's Branch (that is Stockton-on-Tees UKIP) for the current year ending February 2011."
The Relationship of UKIP with its Members
"4.1 Membership is open to UK citizens and resident foreign nationals over the age of 16 years of age who share [UKIP's] aims and who are not members of any other political party or organisation, membership of which the National Executive Committee ("NEC") has declared as incompatible with membership of the party…
4.2 If a member of UKIP subsequently joins such a party or organisation which the NEC has declared to be incompatible with membership of the party, or if the member is found to be a member of such a party or organisation, then their membership of the party will be automatically revoked.
. . .
4.4 Members must maintain their subscriptions.
4.5 Members should accept the Party's constitution and rules made in accordance with this constitution and do nothing to undermine the reputation of the party or to bring the party into public disrepute. Nor shall they act in a manner intended to cause, or actually causing, damage to the Party's interests including by wilful disruptive conduct or by breaching confidentiality.
4.6 Where constituency associations are established, membership shall be of the local Parliamentary Constituency Association and, by affiliation of the Constituency Association, of the National Party.
. . .
4.9 Members shall receive a membership card and the Party's newsletter. They shall be entitled to vote in all the relevant internal Party elections.
4.10 Members are of "good standing" if their subscriptions are up to date and they are not subject to any suspension or exclusion from elected office or from standing as a candidate of any sort.
5 Constituency Associations
5.1 The party shall seek to establish an association in every UK Parliamentary constituency. Constituency associations will affiliate to the National Party by resolution at their first official meeting.
5.2 As a first duty constituency associations shall prepare, organise and fight elections within their constituency and shall nominate and campaign for a UKIP candidate in all UK Parliamentary elections and in as many local government elections as shall be expedient.
5.3 The constituency association has the responsibility for administering its own financial and other affairs subject to the constituency rule book approved by the NEC from time to time including the election of local officers and the selection of candidates for UK Parliamentary and Local Government Elections, such election to be made in accordance with rules established by the NEC from time to time.
5.4 Where an organisation covers more than one parliamentary constituency it shall be know as a Branch and paragraph 5.2 shall apply to it as if it were a constituency association.
. . .
13 Standing and Temporary Committees
13.1 The Standing Committee set up by the NEC shall include a . . . Discipline Committee.
. . .
The Party shall establish a Discipline Committee comprising of the Party's secretary and up to 10 members approved by the Annual Business Meeting from fully paid – up members. The Party Secretary and a minimum of four members of the Discipline Committee shall conduct specific hearings in accordance with the appropriate rules which shall be made by the NEC from time to time.
. . .
15 The Party Rules
The NEC shall establish the rules governing Constituency Associations; . . . disciplinary procedures and all other rules and procedures forming part of the formal management, conduct and administration of the Party save where such rules are already laid down in this constitution."
"These rules should be read in conjunction with the Party Constitution, which, in the event of a clash, shall always take precedence.
. . .
1 Status and Authority
1.1 The basic units of the Party are the Constituency Association and Branches, established under section 5 of the Party Constitution. They shall uphold the principles of the constitution and are responsible to the National Executive Committee via the Party Chairman or his delegate who will normally be a regional organiser.
. . .
1.4 The primary functions of the Constituency Associations and Branches are to select and support candidates for Parliamentary and local elections, to assist in Euro/election campaigns, recruit new members, raise funds and generally to promote the Party in its policies.
. . .
1.7 Constituency Associations and Branches shall both be managed under these rules and both are hereinafter referred to as Branches.
. . .
2.1 All Party members of the Branch in which they live shall be entitled to participate in its activities…
2.3 Party members may, on request, become a member of another branch, subject to the agreement of the receiving Branch Committee.
3. Branch Committees
3.1 Branches are responsible for their own actions and financial affairs.
3.2 A Branch Committee shall have a minimum of two members and would not normally have more then 8 members in total.
3.3 The three principal Branch Officers, Chairman, Treasurer and Secretary shall all be Committee members.
. . .
3.8 Duties of Branch Officers.
3.8.1 The Chairman has a principal responsibility for the direction of the Branch and shall normally chair all meetings including the AGM.
. . ."
7.1 Incidents may arise when differences within a branch threaten its proper functioning. Every effort shall be made to resolve these at the local level, either by the Branch Committee or as a full meeting of the Branch. If it does not succeed, the dispute shall be referred to the regional organiser, acting on behalf of the Party chairman.
7.2 If the dispute remains irreconcilable, or if the Party Chairman deems that the behaviour of the committee or its officers is inconsistent with the Party's constitution or principles, the Party Chairman will suspend or dissolve the Committee or dissolve the Branch."
The Factual Background
"matters were raised at our last meeting and are of concern to members are being dealt with and a report will be issued as soon as practical"
"I have decided that this office has better things to do and henceforth will have no further dealings with you.
If you wish to write to the Party Chairman your letters will be forwarded. Any letter or e-mails to me will find their way to a different destination. I will also give instructions to Head Office staff not to engage in conversation with you on the telephone. I will not engage with you on the telephone"
"dealt with at every level within the Party, up to the level of Party Chairman and at all levels they have seen your complaints were unfounded and without substance…
I have once again taken valuable advice from our regional organiser and I have decided on the following actions, which I shall give my reasoning for this action.
It has been decided that you will no longer be permitted to attend any Branch meeting of which I am chairman. The reasoning for this is as follows:
At your two attendances at Branch meetings you did bring the meeting into disrepute.
At your last attendance at the Branch meeting at Kiora all your actions and outbursts created an embarrassing situation which led to the eviction from that venue and the prevention of our return…
Clearly you are dissatisfied with the Party and the way in which it operates and for this reason I strongly recommend that you will withdraw from your membership of the Party forthwith…
As of this point in time I have advised the Branch Secretary not to enter into any further communications with you or your colleagues.
I and the Party have dealt with your complaints and dissatisfactions as they have arisen and we can do no more at this level.
Should you wish to take the matter further then your only option left is to go through Head Office."
"In March 2010 the UK Independence Party wrote to Mr Allan Hardy stating that if he were to choose to renew his Party membership then his renewal would be accepted and that internal Disciplinary Proceedings would immediately commence against him as a result of his alleged actions at Party meetings.
The UK Independence Party considers people whose subscriptions are up to 3 months out of date to still remain as lapsed members on the database and entitled to renew without such renewal being considered to be fresh application for membership. As more than 3 months have passed without such renewal in this case, any further application to join the UK Independence Party from Mr Hardy would be treated in the same way as a new membership application.
It is the policy of the UK Independence Party not to accept membership applications from former BNP members and activists; any new application for membership from Mr Hardy would therefore now be rejected on those grounds.
(1) That membership of UKIP was open to Mr Hardy as a person within the terms of Clause 4.1 of the Constitution and he had done nothing to lose his entitlement to membership under clauses 4.2 or 4.3.
(2) That neither the Constitution nor the Rules provided for expulsion or suspension in the circumstances of Mr Hardy's case.
(3) That so far as Mr Parkin was concerned, his letter of 11 September 2009 banning Mr Hardy from attending Branch meetings on the ground that the previous two meetings had brought UKIP into disrepute were not, (as had been argued), justified as an exercise of the Chairman's authority under Rules 3.1 and 3.8.1, or as a legitimate form of dispute resolution under Rule 7. On the contrary, Mr Parkin had acted autocratically taking sole responsibility for what was in effect a suspension of Mr Hardy's membership without having (i) called an emergency meeting of the Branch Committee under Rule 4.1.1 (ii) convened a dispute resolution meeting of the Branch Committee or of the whole Branch under Rule 7.1 or (iii) given Mr Hardy a reasonable opportunity to put forward a case of his own as to why he should not be suspended or excluded from Branch meetings. Mr Parkin's letter was in breach of the Rules and a decision taken in breach of natural justice.
(4) That the effect of such letter and/or suspension was (albeit unwittingly on her part) compounded by Mrs Duffy by her letters in March 2010, the first of which rejected Mr Hardy's renewal subscription and the second of which informed him that he needed to re-apply if his membership was to be restored.
(5) The subsequent attempt by Mr Arnott in his statement of 8 September 2010 to rely upon Mr Hardy's former membership of the BNP as a reason to reject any further application made by Mr Hardy to renew his membership was found by the judge to be a deliberate contrivance to exclude Mr Hardy from membership of UKIP and to do so on spurious grounds (see para 12 of judgment), the reference to his former membership of the BNP being "a fig leaf… which disclosed an urgent desire to expel Mr Hardy at any price" (see para 16 of judgment). As such it was confirmatory of the intention of UKIP to exclude Mr Hardy from membership.
The Grounds of Appeal
"Thus on these facts I have no hesitation in finding that in effect both Mr Parkin and UKIP purported to expel Mr Hardy from the membership of Branch and Party. Was either entitled in law to do so?"
"19. The effect of such an act is compounded by the impression unwittingly given by Mrs Duffy but unambiguously announced by Mr Arnott by his general message of 10 September. The only reference sensibly to be drawn is that the senior party officers were backing and reinforcing Mr Parkin's act and were not having Mr Hardy back"."
"…as the Constitution does not provide for expulsion and where they are silent as to the procedure of the rules of natural justice and that of a fair trial are to be applied, and where this last applies the claimant [sic] needs to prove that his case was dealt with by a reasonable and proportionate response in all the circumstances of the case."
It seems to me that the reference to "the claimant" is a mistake for the defendant.
(2) I would set aside the judgment below insofar as it purports to apply to the Stockton-on-Tees Branch of UKIP.
(3) I would dismiss the appeal of UKIP. Consequential amendments to the wording of the Order below will be required to reflect (1) and (2) above.
Lord Justice Tomlinson:
Lord Justice Ward :