England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 December 2010

Lord Justice Moore-Bick :

1. This is the judgment of the court to which each of its members has contributed.

Background

2. This is an application by the Commission for Equality and Human Rights ("the Commission") for the committal to prison of the three defendants, each of whom has been sued by the Commission as a representative of the British National Party ("BNP"). The BNP is an unincorporated association and as such has no separate legal personality. Proceedings against it therefore have to be brought against individual members representing the membership as a whole. The first defendant, Mr. Griffin, is and has at all material times been, chairman of the party. The second defendant, Miss Lumby, was at one time National Nominating Officer, but resigned from that position in September 2009 and left the party altogether in July 2010. The third defendant, Mr. Darby, was at one time deputy chairman and treasurer of the party. He resigned as treasurer in September 2009, but continued as deputy chairman until 30^th June 2010. He resigned from the party a few days later in July 2010.
3. The Commission is a body established under the Equality Act 2006 whose functions include that of taking action to prevent breaches of the equality legislation. In particular, under section 24(1) of the Equality Act 2006 (the legislation in force at the time) the Commission had power to apply to a County Court for an injunction to restrain the commission of acts that constitute unlawful discrimination. The proceedings which have given rise to this application involve an attempt by the Commission to prevent unlawful discrimination by the BNP in the terms on which it admits people to membership.
4. In August 2009 the Commission started proceedings against the defendants in the Central London County Court seeking orders to restrain the BNP from applying to applicants for membership certain provisions of its constitution which the Commission considered to be directly discriminatory on the grounds of race, contrary to sections 1(1)(b) and 25(2)(a) of the Race Relations Act 1976. (In view of the representative nature of the proceedings it is convenient to refer to the defendants as the BNP.) The proceedings related to the 9^th Constitution of the BNP, but unbeknown to the Commission the party had by that time moved beyond the 9^th and indeed the 10^th Constitutions and had adopted the 11^th Constitution. However, the provisions to which the Commission objected were to be found in all three versions. For reasons that will become apparent it is unnecessary to refer to them in detail.
5. At a hearing before His Honour Judge Collins C.B.E. on 15^th October 2009, by which time the BNP was represented by solicitors and counsel, Mr. Griffin gave an undertaking on behalf of himself and all other members of the BNP to use all reasonable endeavours to bring about the adoption by the party of a revised constitution that did not discriminate directly or indirectly on any "protected characteristic" within the meaning of that expression as used in the Equality Bill then before Parliament, and in the meantime to close the party to new members. On the basis of that undertaking the matter was adjourned to 28^th January 2010.
6. Revision of the constitution had not been achieved by the time the matter came back before the judge on 28^th January, but after hearing representations from both sides the judge was persuaded to adjourn the matter to 9^th March.
7. On 19^th February 2010 the BNP sent the Commission a copy of version 12.1 of the constitution which it said had been adopted at an extraordinary general meeting of the party on 14^th February. That version appears to have been amended, either on the same occasion or very shortly afterwards, because when the matter came before the judge for a hearing on 9^th March it was common ground that the court was concerned with version 12.1 of the BNP's constitution rather than any preceding version.
8. Version 12.1 contained provisions requiring new members to adhere to, or at any rate not to oppose, the following statements of political principle:

"3.2.1 . . . We are pledged to the continued creation, fostering, maintenance and existence of a unity and of the integrity of the Indigenous British . . .

. . .

3.2.3 We are pledged to stemming and reversing the immigration and migration of peoples into our British Homeland that has, without the express consent of the Indigenous British, taken place since 1948, and to restoring and maintaining, by legal changes, negotiation and consent, the Indigenous British as the overwhelming majority in the make up of the population of and expression of culture in each part of our British Homeland."

Clause 4.17 also made continuing membership of the party conditional upon satisfying certain conditions of membership, one of which was bona fide agreement with the party's principles (clause 4.18.4).

9. Furthermore, clause 4.38, which formed part of the section dealing with membership, provided as follows:

"Not withstanding any other provision of our Constitution no Individual Member shall be entitled to attend any Official Meeting of our Party . . . unless and until that Individual Member permits the authorised representatives of the relevant Branch Organiser or the relevant Group Organiser applicable to the area in which the Individual Member's principal place of abode is situated . . . to interview the Individual Member at, unless impracticable, that Individual Member's principal place of abode for a reasonable duration but not more than two hours for the purpose of conducting market research and for the purpose of conducting member expectations and aspirations surveys, ("the Member Induction Condition")."

However, clause 4.39 provided that a person should be deemed to have satisfied that requirement if he or she did not receive a request for an interview within nine months of admission to membership. To that extent, therefore, the judge was justified in regarding it as a condition of admission to membership.

The Order

10. The judge delivered judgment on 12^th March 2010. He observed that the revisions brought about by the adoption of the 12^th Constitution meant that there was no longer any case based on direct discrimination, but he held that the requirement for new members to adhere to the party's principles, including those in clauses 3.2.1 and 3.2.3, rendered version 12.1 of the constitution indirectly discriminatory and unlawful. He took a similarly jaundiced view of clause 4.38. He held that by implementing version 12.1 the BNP was likely to commit unlawful acts of discrimination contrary to section 1(1)(b) of the Race Relations Act 1976 in the terms on which it was prepared to admit persons to membership and made the following order:

"1. Each of the Defendants, and all other members of the British National Party ("hereinafter "BNP"), are prohibited from (i) requiring, and forthwith shall not require, in any way at all as a condition of membership of the BNP, the agreement with, or support for, or non-opposition to, or non-disagreement with, each or both of those parts of the Principles set out in Clauses 3.2.1. and 3.2.3. of the 12^th Constitution of the BNP, as are set out in the Appendix to this Order, and (ii) applying clause 4.38 of that constitution;

2. For the avoidance of doubt, each of the Defendants, and all other members of the British National Party, are also prohibited from requiring, and forthwith shall not require, as a condition of membership of the BNP, in any way at all, under any subsequent revision or amendment of the BNP's 12^th Constitution, the agreement with, or support for, or non-opposition to, or non-disagreement with, the Principles set out in the Appendix;

3. Each of the Defendants, and all other members of the British National Party ("hereinafter "BNP"), shall forthwith amend and revise the 12^th Constitution of the BNP, so as to remove the requirement imposed on a prospective member of the BNP under Clause 4 bona fide to agree with or support or not oppose or not disagree with the principles set out in Clauses 3.2.1. and 3.2.3. as a condition of membership, and to remove clause 4.38;

4. The members of the BNP shall keep their association closed to new members until the 12^th Constitution is amended and revised in accordance with the previous paragraph of this Order;

5. The three named Defendants shall immediately, and no later than by 16.00 on Monday 15^th March 2010, procure that the full terms of this Order and the Judgment of HHJ Collins dated the 12^th March 2010, are brought to the attention of all members of the BNP, by

(a) publishing the entirety of the Order (including the Penal Notice and the Appendix) and Judgment in an easily accessible part of the BNP's website, and

(b) identifying exactly where each can be found by a notice set out in a prominent place on the front page of the BNP's website, and

(c) maintaining the publication (as set out in the previous two sub-paragraphs) until the 12^th Constitution is amended and revised in accordance with this Order, so as to conform to the terms of this Order and the judgment of HHJ Collins C.B.E. dated the 12^th March 2010;

6. The three named Defendants shall immediately, and no later than by 16.00 on Monday 15^th March 2010, procure that the full terms of this Order, are sent by post to all current members of the BNP . . . ."

11. The Appendix to the order set out the parts of clauses 3.2.1 and 3.2.3 to which we referred earlier. It is important to note, as paragraph 2 makes clear, that the order is prospective in nature, in that it prohibits the BNP from requiring adherence to the principles set out in the appendix under any subsequent revision or amendment of its constitution.

Subsequent events

12. Later in the afternoon of 12^th March 2010, in the purported exercise of his powers as chairman, Mr. Griffin issued Addendum No. 2 to version 12 of the constitution giving effect to the order and membership was re-opened the same day. Over the following few days steps were taken to publicise the order and judgment to the members of the BNP by placing a link to them on a website to which they (but not the public at large) had access. In addition it appears that an e-mail was sent on 15^th March 2010 to some (though by no means all) of the members, to which was attached a copy of the order. On 9^th April 2010 the BNP published version 12.2 of the constitution.
13. After making various investigations and enquiries, including enquiries of the party itself, the Commission came to the conclusion that the BNP had failed to comply with the judge's order in a number of respects when formulating and adopting version 12.2 of the constitution. It therefore made an application to the Central London County Court on 7^th June 2010 for an order that the defendants be committed for contempt as well as for other relief, including the sequestration of the BNP's assets. Judge Collins was apparently concerned that he might not have jurisdiction to make a sequestration order, so he directed that the matter be transferred to the High Court. He also directed that the Commission file a fresh application notice. On 7^th September 2010 the matter came before Nicola Davies J. who gave directions for the hearing.

The application

14. In opening the application Mr. Allen Q.C. identified on behalf of the Commission the many respects in which he submitted that the BNP had failed to comply with the order. In due course, however, it became apparent that in many cases such breaches as may have occurred had subsequently been rectified and that (unsurprisingly) the Commission for its part was not so much seeking to have the defendants punished in respect of past failures as to ensure that steps were taken to ensure that the order was complied with in full in the future. His express confirmation of the position was helpful, because it enabled the parties and the court to concentrate on the most important issues that arise on this application, namely, the scope of the application and whether version 12.2 of the constitution complies with the judge's order.
15. Mr. Reade Q.C. for Mr. Griffin and Mr. Darby spent some time seeking to demonstrate that the Commission did not allege that the defendants were in breach of paragraph 3 of the order and that therefore no question arose of their being in breach of paragraphs 4 or 5. However, all that became of secondary importance once Mr. Allen had clarified the Commission's position in the manner indicated. It then became possible to concentrate on paragraphs 1 and 2 of the order. As a result we took the view that it would be sensible to determine as preliminary issues the meaning of the order and whether version 12.2 of the constitution fails to comply with the order in any material respect, those questions being to a greater or lesser extent inter-related. The parties were content that we should take that course and accordingly this judgment is confined to those issues.
16. Mr. Reade's primary submission, which was adopted by Mr. Ley for Miss Lumby, was that the order is concerned only with the terms on which people are admitted to membership of the BNP and not with the rights that may be exercised as members once they have been admitted. In version 12.2 of the BNP's constitution clauses 3.2.1 and 3.2.3 are still included in the statement of principles which, according to clause 3.2, represent the primary political objectives of the party, but amendments to Section 4 have removed the requirement that prospective members agree with and support them and the former clause 4.38 has been removed. Mr. Allen submitted, however, that notwithstanding those changes version 12.2 fails to comply with the order because the discriminatory conditions on which people were formerly admitted to membership have simply been imposed on the exercise of any meaningful rights as party members, in particular, the rights to attend party meetings and to vote.

Version 12.2 of the constitution

17. Version 12.2 of the BNP's constitution contains a number of provisions which are of particular significance for the present application. Section 3 contains statements of the party's principles and political objectives and may be said to define its essential nature. Clauses 3.2.1 and 3.2.3 are present in the same form as were to be found in version 12.1.
18. Section 4 deals with membership. Although clause 4.1.2 provides that membership is open to those who are indigenous British by descent or origin, clause 4.1.3 provides that admission is also open to persons of any other descent or origin. Clause 4.1.4.3 makes it a condition of membership that a person agrees with, or does not disagree with, the party's principles, but that is subject to the exception in clause 4.67, which, in conjunction with clause 4.68, disapplies the requirement for agreement with the offending parts of clauses 3.2.1 and 3.2.3 for as long as Judge Collins' order remains in force. As far as we are aware, no formal attempt has been made to challenge it.
19. Section 16 deals with meetings and ballots. Clause 16.4 provides that in order to acquire the right to attend or vote at any official meeting a member must have not less than two years' continuous membership and must satisfy a number of additional requirements, including what are known as the "Contact Criteria", the "Annual Visit Criteria" and the "Adherence Criteria". In order to satisfy the Contact Criteria a member must allow not more than two representatives of the party to interview him or her at home for a reasonable period, but not less than one hour,

" . . . for the purposes connected with initiating contact between our Party and each Individual Member and to welcome and induct an Individual Member into our Party; including without limitation for the purposes of protecting the health and safety of the Individual Members of our Party, the group integration and cohesion of our Party and the good reputation of our Party."

The Adherence Criteria require a member who wishes to attend any official meeting of the party or a leadership election to sign a statement that he or she bona fide agrees with and supports the principles of the party. The Annual Visit Criteria require a member to allow interviews similar to those required by the Contact Criteria to take place not more than once in any twelve month period for the purpose of conducting market research and member expectations, aspirations and satisfaction surveys.

20. Section 18 of the constitution deals with voting members. Clause 18.2 designates the "office" of voting member as "the most junior Office in our Party". Appointment requires satisfaction of the Adherence Criteria, Contact Criteria and Annual Visit Criteria as well as not less than two years' continuous membership.
21. Taken together these requirements impose on any member who wishes to attend a members' general meeting, a voting members' meeting or a party conference an obligation to adhere to those of the party's principles to which paragraphs 1 and 2 of the judge's order refers and to submit to a home visit by two members of the party of a kind that was formerly provided for by clause 4.38 of version 12.1.

The meaning of the order

22. The Commission and the BNP differ on the meaning of paragraphs 1 and 2 of the order. In construing the judge's order it must be borne in mind that it was contemplated from the outset that if the court were to grant any injunction the order would be supported by a penal notice to enable it to be enforced, if necessary, by coercive measures, in particular the committal to prison of the three defendants and any other members of the BNP on whom it might have been served. In such cases it is vital that those to whom the order is addressed are able to understand clearly what they are and are not to do and if there is any uncertainty in its meaning the order should be construed in a manner that is less, rather than more, onerous to them. In Redwing Ltd v Redwing Forest Products Ltd (1947) 64 R.P.C. 67 the court was concerned with an alleged breach of an undertaking given by the defendant not to advertise or offer for sale any products as 'Redwing' products so as to be liable to lead to the belief that they were the plaintiff's. Jenkins J. held that there was no breach of the undertaking unless the manner of the advertising or offer were such as to lead to such a belief. He said at page 71:

" . . . a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purposes of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question."

23. The nub of the dispute in this case is whether paragraphs 1 and 2 of the order are directed only to the conditions on which persons are admitted to membership of the BNP or whether they extend to the conditions attaching to membership once entry to the party has been gained. It is plain from the terms of version 12.2 of the constitution that the party has been restructured in response to the judge's order so as to remove the conditions formerly attaching to admission and to reinstate them as barriers to active participation in its affairs. Mr. Allen submitted that the expression "condition of membership" was easily capable of referring to conditions under which membership is enjoyed and that the words "in any way" demonstrate an intention to prohibit the employment of the offending principles, or the use of the provisions of clause 4.38, in any manner and for any purposes.
24. The meaning of the phrase "conditions of membership" could reasonably be construed as having either of the two meanings which are contended for by the Commission and the BNP in this case. While it does not refer to "terms of admission to membership", which would follow the provisions of section 25(2)(a) of the 1976 Act, neither does it refer to "benefits afforded to members", which would be more apt to cover such things as the right to attend meetings and vote, which is the subject matter of section 25(3) of the 1976 Act. In such a case, as Jenkins J. said in Redwing, it would be wrong for a person to be committed for contempt on the basis that, on one of two possible meanings, he has breached the terms of the injunction.
25. For that reason alone we do not consider that the application to commit for breach of paragraphs 1 or 2 of the order can succeed, but we are also of the view that the same conclusion must follow if the order is construed against the background of the proceedings and the judgment. Such an approach may be more appropriate in a case where all the defendants against whom the order is directed and whom it is sought to commit can be taken to have been aware of the nature and course of the proceedings. Language is very flexible and in order to avoid subtle distortions of meaning the order can in such cases properly be read and understood against that background. If that were not the case, those to whom it is addressed might be able to dispute its meaning when in fact it is perfectly clear what the court meant and that they must have been aware of its meaning.
26. In its original particulars of claim dated 21^st August 2009 the Commission directed its fire against the terms of the 9^th edition of the BNP's constitution, which it alleged was directly discriminatory on racial grounds because it restricted membership to those who have white skin (paragraph 16). It therefore alleged that, unless restrained from doing so, the BNP was likely to commit unlawful acts in respect of its admission to membership (paragraph 17). In its prayer the Commission sought, among other relief, a declaration that it is unlawful racial discrimination for the BNP to restrict membership of its organisation on the basis of its current (i.e. 9^th edition) membership criteria and an order that it cease to publish the 9^th edition of its constitution and membership criteria on its official website. The particulars of claim were later amended, but not in any respects that are material for present purposes.
27. On 23^rd February 2010 in response to an order made by the judge at the hearing on 28^th January the Commission filed points of claim dealing with the position as it then stood following the production by the BNP of version 12.1 of the constitution. In paragraphs 33 and 35 it asserted that by clause 4.1.4.3 of the constitution admission to membership of the BNP was limited to persons who agreed, or did not disagree, with the party's principles, including those principles contained in clause 3.2, and by clause 4.1.4.4 to persons who agreed, or did not disagree, with certain nationalist statements set out in an appendix to the constitution. In paragraph 42 the court was invited to rule specifically on the requirements of clause 4.1.4.3 as applied to clauses 3.2.1 and 3.2.3, which, it contended, were unjustifiably indirectly discriminatory. The Commission sought the same remedies as it had in its original particulars of claim.
28. The terms of the points of claim reflect some uncertainty on the part of the Commission as to the precise status of the document said to represent version 12.1 of the BNP's constitution and whether it or the 11^th edition was currently in force. However, by the time of the hearing it had become reasonably clear that version 12.1 of the constitution had been adopted and attention appears to have been concentrated on its terms. We think it is reasonably clear from the judgment that the Commission's arguments were directed to the terms on which persons were admitted to membership under Section 4 and in particular clause 4.1.4.3, which required any prospective member to make a bona fide statement that he or she agreed with the party's principles. That is not surprising, because the Commission based its case on section 25(2) of the Race Relations Act 1976, which made it unlawful for an unincorporated association such as the BNP to discriminate against a person who was not a member in the terms on which it was prepared to admit him to membership or accept an application for membership. It was not based on section 25(3), which deals with discrimination against members in terms of benefits, facilities or services.
29. The judgment naturally enough reflects the way in which the case was argued. In paragraph 12 the judge records that the Commission's original complaint was that under the 11^th version of the constitution only white people were allowed to join the party, but that following the adoption of the 12^th constitution the BNP was now open to persons of any descent, so that the case based on direct discrimination had gone. The judge then considered the provisions of the constitution dealing with admission to membership (including clauses 4.1.4.3 and 4.38). He was inclined to hold that clause 4.38 alone was discriminatory in the terms on which the BNP was prepared to admit people to membership (paragraph 17), but quite apart from that, he considered that clause 4.1.4.3 was indirectly discriminatory and therefore unlawful because it required new members to adhere to the principles contained in clauses 3.2.1 and 3.2.3. The judge rejected the argument that there was no significant detriment in not being admitted to membership of the BNP, saying that wanting to join and being refused was enough to satisfy the requirements of section 25 of the 1976 Act. He summarised his conclusions as follows in paragraph 23 of the judgment:

"Mr. Allen accepted that if his argument were correct, the reason why the BNP's terms of membership are discriminatory is because the BNP's principles are themselves discriminatory. But it is not unlawful to hold discriminatory views; the BNP is a lawful registered political party. The crucial distinction is that if those discriminatory principles are employed as part of the mechanism for admission to membership of the party they run the risk of offending against s.25. For the reasons advanced on behalf of the commission . . . I hold that the BNP are likely to commit unlawful acts of discrimination within section 1(b) Race Relations Act 1976 in the terms on which they are prepared to admit persons to membership under the 12^th edition of their constitution."

30. We do not doubt that language of the kind used in the order could, in the appropriate context, bear the meaning for which the Commission contended, but we think it is clear that the case was argued and decided on a narrower ground, namely, whether the requirements in clause 4.1.4.3 of version 12.1 of the constitution that had to be satisfied by anyone seeking admission to the party were discriminatory.
31. The interpretation of the order is not in our view assisted by the fact that the judge decided, apparently somewhat at the last minute, to include in paragraphs 1 and 3 a prohibition on applying clause 4.38, which was added by him in manuscript after the draft had been put before him for his approval. Although when read together with clause 4.39 clause 4.38 could be viewed as another condition of membership, compliance was not a condition of admission to membership as such, but of the right of a member to attend official meetings. It might be said, therefore, that the prohibition on its application is sufficient to demonstrate that the order was intended to relate to conditions of membership in a wider sense, but that does not reflect the way in which the case was argued, the way in which Judge Collins interpreted clause 4.38 as a term on which members were admitted to membership at paragraph 17 of his judgment, or the reference in paragraph 3 to prospective members. Moreover, it may be of relevance to note that version 12.1 of the constitution contained other terms of a discriminatory nature restricting the rights of members to attend and vote at party meetings: for example, clause 4.40 provided that no member should be entitled to attend or vote at any official meeting unless he had delivered to the chairman a written statement confirming that he bona fide agreed with and supported the party's principles, and the same requirement was imported into section 18 dealing with voting members. None of those clauses formed any part of the Commission's complaint. They are not referred to in the judgment and were not made the subject of the order. Apart from the additional prohibition of the use or retention of clause 4.38, therefore, paragraphs 1, 2 and 3 of the order are all expressed in a way that suggests they are directed to the terms on which applicants are admitted to membership, rather than to the terms on which members, once admitted, may acquire or exercise particular rights. Of course, paragraphs 1 and 2 have to be construed not only against the background of the proceedings but in conjunction with the rest of the order, but there is nothing in paragraphs 3 to 6 which indicates that they were intended to have a wider meaning than would otherwise appear to be the case. On the contrary, the conclusion that they are properly to be understood as being directed to the terms on which persons will be admitted to membership is to some extent reinforced by the fact that the Commission does not allege that the BNP is in breach of paragraph 3 of the order. It is accepted that all the necessary amendments have now been made in version 12.2.
32. Having regard to all these matters, we think that paragraphs 1 and 2 of the order must be understood, save, perhaps for the prohibition on the retention of clause 4.38, as being limited to the terms on which persons are admitted to membership. It is possible that they also extend to the terms on which persons are entitled to retain membership, since the proceedings were clearly concerned with access to membership and the two are closely related. It is unnecessary to decide that, however, since clauses 4.17 and 4.18.4 have been amended so as to remove the need to agree with the party's principles and no complaint is made about them. However, we do not think they can be understood as extending to the terms on which existing members, once admitted, are entitled to exercise any particular rights, such as attending and voting at official meetings or holding office. Whether these are matters in respect of which the Commission is entitled to take action under the legislation currently in force is a matter on which we express no opinion.
33. The particular nature of clause 4.38 makes it necessary to consider separately the scope of those parts of the order which relate to it. The relevant part of paragraph 1 prohibits the BNP from applying clause 4.38 of version 12.1 and paragraph 3, read naturally, contains a simple order to remove it from the constitution. The two obviously have to be read together. In view of the fact that no attack was made on Section 18 of version 12.1, which imposed restrictive conditions on obtaining the status of voting member, and the absence of any qualifying words in paragraph 1 prohibiting the use of the same or any similar clause in other contexts, we think it doubtful that the order can properly be understood as going beyond a prohibition against applying clause 4.38 as such pending its removal from the constitution. At any rate, we do not think that the terms of the order are sufficiently clear to impose a prohibition on the use of a similar requirement as a condition of obtaining the separate status of voting member under a different section of the constitution that is not concerned with membership. As we have pointed out, it is not without significance in this context that the Commission does not allege that the BNP continues to be in breach of paragraph 3 of the order.
34. In the light of the Commission's indication that it would not be minded to press its application for sanctions in relation to breaches of the order that have since been rectified, the matter should now be listed for directions to enable the future course of the proceedings to be considered in the light of our decision.
35. Before parting with the matter we wish to add one comment by way of clarification. The court has been concerned on this occasion primarily with the scope of the order made by Judge Collins. It has not been concerned with the more general question whether any aspects of the BNP's current constitution infringe the prohibition on discrimination on the grounds of race now contained in the Equality Act 2010, which may have to be considered on another occasion.