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High Court of Justice in Northern Ireland Chancery Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Chancery Division Decisions >> Weir v Hermon & Ors [2001] NICh 8 (06 April 2001)
URL: http://www.bailii.org/nie/cases/NIHC/Ch/2001/8.html
Cite as: [2001] NICh 8
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Neutral Citation no.[2001] NICh 8
Ref:
GIRF3402
Judgment: approved by the Court for handing down
Delivered:
06.04.2001
(subject to editorial corrections)
BETWEEN:
Plaintiff;
LADY SYLVIA HERMON, ROY DAVIES AND PAMELA GRANT-STEVENSON SUED ON THEIR OWN BEHALF AND ON BEHALF OF AND REPRESENTATIVES OF NORTH DOWN UNIONIST ASSOCIATION
Defendants.
GIRVAN J
The proceedings
The plaintiff Peter Weir by the writ of summons issued on 23 March 2001 seeks a declaration that a special association meeting of the North Down Unionist Association ("the Association") originally proposed to be held on 22 March 2001 to discuss the motion that he be deselected as the Association's candidate in the North Down Parliamentary constituency is unlawful ultra vires and in breach of contract. He seeks an injunction to restrain the defendant from holding the meeting together with a declaration that the association has no power to deselect him as the Parliamentary candidate for the forthcoming general election.
An ex parte injunction to restrain the holding of the meeting was granted to the plaintiff on Friday up to 3.00 pm on 23 March 2001. The matter was then further adjourned for an inter partes hearing, the meeting being postponed in the meantime.
Factual background
The plaintiff has been a member of the Association for some 13 years. The Association is affiliated to the Ulster Unionist Council ("the UUC"). The Association undertakes the role of arranging for the democratic selection of Ulster Unionist candidates for North Down in the Parliamentary elections to the UK Parliament at Westminster. The Association has a number of local branches incorporating a number of local government wards.
On 30 March 2000 the plaintiff, who is a Member of the Legislative Assembly in Northern Ireland, was selected by the Association as the prospective Ulster Unionist candidate for North Down in the next Parliamentary election, the other two candidates Lady Hermon and Ms Grant-Stevenson had not been eliminated as candidates.
On 10 November 2000 the officers of the Executive Committee of the Ulster Unionist Council appointed a Disciplinary Committee to investigate the plaintiff's actions as a Member of the Legislative Assembly and to carry out any disciplinary sanctions. On 23 February 2001 the Disciplinary Committee purported to suspend the plaintiff's membership of the Ulster Unionist Party until further notice. The letter of 23 February 2001 from the chairman of the Disciplinary Committee stated that:
"The Committee finds that the actions you have been found guilty of were actions detrimental to the interests of Ulster Unionists, the Ulster Unionist Party and the objects of the Ulster Unionist Council."
In accordance with Rule XIX(4)of the UUC Rules the plaintiff entered a conditional appeal against his purported suspension contending in (inter alia) that there was no such body as the Ulster Unionist Party from which he could be suspended, that the suspension until further notice was invalid and that the Committee could not come to the conclusion that it had reached on the evidence. No appeal has yet taken place. I understand that the plaintiff challenged the right of a special meeting to hear the appeal on the ground that the meeting was not "the next stated meeting" of the Executive Committee as set out in Rule XIX(4).
The relevant rules of the Association
By Clause III the Association is affiliated to the UUC. Clause IV sets out the objects of the Association paragraphs 2 and 3 of which provide:
"(2) To promote and extend Unionist interests throughout the constituency in accordance with the policies adopted by the Ulster Unionist Council and consolidate and co-ordinate the activities of branches within the Constituency.
(3) To arrange for the democratic selection of Ulster Unionist candidates for the Constituency at all Elections for the UK Parliament and NI Assembly and to promote and to give unqualified support to the candidature of whoever is so selected."
Clause V makes provision in paragraph (d) as follows:
"No member of the Association or branch thereof shall support or promote the candidature of any person in opposition to the officially selected Ulster Unionist candidate in any election."
In Clause VIII the functions of the Association are set out these include as follows:
"The Association shall be called, to select the Ulster Unionist candidate(s) in the UK Parliament or a NI Assembly provided always that the name of any candidate shall not be considered unless such name has been previously submitted to and approved by the Management Committee and such candidate has complied with the requirements of Rule XV(6) ten clear days notice of such Association meeting except under exceptional circumstances."
The Association has power to terminate the membership of the Association of any person whose conduct is such as to render his continued membership of the Association undesirable as being contrary or disadvantageous of the Association or detrimental to the best interests of the Ulster Unionist Council provided that the member shall have 14 days notice in writing of the meeting of the Committee at which his expulsion is to be considered and he shall be entitled to appear before the Committee and to explain his conduct. In the case of expulsion the Honorary Secretary shall inform the secretary of the Ulster Unionist Council.
Paragraph K provides:
"To do all such acts as may be advisable for the carrying on of the business of the Association and for promoting its objects and interests."
It is provided that special meetings of the Association may be called by the chairman or upon the receipt of a requisition signed by not less than 30 members or one quarter of the membership of the Association, whichever is the lesser and addressed to the Hon Secretary, specifying the reasons for such meeting had being requested. Notice of any such meetings shall be sent to the Hon Secretary to each member stating the date, time and place and no other matter other than that on the agenda shall be discussed, seven days notice shall be given.
Clause XV sets out the procedures for the selection of the Parliamentary and Assembly candidates. The Hon Secretary of the Association must give 14 days notice in writing to all members of the Association of the selection meeting and shall invite the approved candidates to be present. The Management Committee in paragraph 3 is directed to establish suitable criteria for the prospective candidates prior to consideration of the selection. On or before the selection meeting each perspective candidate must sign an authority and undertaking as detailed in Appendix 4 and paragraph 7 allows short listed of candidates to have the opportunity to address the Association and answer questions.
Paragraph 8 provides that the selection of candidates shall be determined by the outcome of the voting members who are fully paid up members and have at least two months membership. Voting is by secret ballot.
Under Clause XVII the Association has power to amend the rules provided notice is given to each member of the Association of the intention to do so at least 14 days before such meeting of Association and the amendment shall not take effect until approved by the UUC.
Under the terms of the authority and undertaking given by each prospective candidate paragraph 2 provides that the prospective candidate agrees to loyally support the candidate chosen and in no circumstances to stand in opposition to him at the forthcoming election. In paragraph 3 it is provided that in the event the candidate being chosen he or she undertakes to pay the expenses of the ensuing election of such sum toward them as may be agreed between him or her and the officers of the Association. Paragraph 4 provides:
"I also undertake to support loyally and adhere to the constitution, policies and rules of the Ulster Unionist Council and the resolutions and directions of its Executive Committee."
The relevant rules of the UUC
Clause II provides that the objects of the Council are to maintain Northern Ireland as an integral part of the United Kingdom. Paragraph 4 of that Clause provides that the objects of the Council include the object of promoting "the principles and aims of the Ulster Unionist Party and to encourage membership amongst those of all ages who share these objectives." The Council is made up of delegates elected to represent the affiliated constituency associations based on the Parliamentary constituencies within Northern Ireland and representatives appointed by affiliated bodies including the County Grand Orange Lodges within Northern Ireland and various other associations and bodies named. It is provided that each such representative of an affiliated body shall be a member of an affiliated constituency association and shall not belong to any political party other than the Ulster Unionist Party. The constitutional rules of the Ulster Unionist Council proceed from the premise that there exists such a thing as the Ulster Unionist Party as evidenced in Clause III(ii), Clause V (which relates to the election of the Leader of the Party), Clause X(15) (which includes in the powers and duties of the Executive Committee the consideration of all aspects of policy of the party and the formulation of party policy) and Clause XVIII which empowers the Disciplinary Committee to take steps against a constituency association when its conduct is detrimental to the interests of Ulster Unionism or the Ulster Unionist Party.
Clause XIX is particularly relevant in the present context. This sets out the powers of disciplinary action in respect of members of the party. Under paragraph 1 it is provided that:
"If the officers have reason to believe that the conduct of any member of the Ulster Unionist Party is detrimental to the interests of Ulster Unionism or the Ulster Unionist Party or disadvantageous to the objects of the Council then the officers shall refer the matter to the Disciplinary Committee."
Paragraph 2 provides that if after having investigated the matter the Disciplinary Committee decides that the conduct of the member has been in its opinion detrimental to the interests of Ulster Unionism or of the Ulster Unionist Party or disadvantageous to the objects of the Council then the Disciplinary Committee shall have power to take such disciplinary action against the member concerned of such nature as it considers appropriate including expulsion from membership or the Ulster Unionist Party or in the case of a member of the Ulster Union Council, expulsion from the Council. Paragraph 3 then provides:
"If the Disciplinary Committee expels or suspends the person concerned for membership of the Ulster Unionist Party he shall thereupon cease to be a member thereof and shall forfeit all the rights and privileges of party membership."
It follows from the clear wording of the rule that suspension has the consequence of the relevant member "forfeiting all the rights and privileges of party membership".
The Management Committee meeting
According to the evidence of Lady Hermon, prior to the suspension of the plaintiff by the Disciplinary Committee concern was being expressed by members of the Association as to the ability of the plaintiff offering a real prospect of success in the election in the constituency because of his stance as a politician opposed to the Belfast Agreement.
On 8 March 2001 purporting to act under Rule XII of the Association rules Lady Hermon as the Chairman of the Association since 24 January 2001 convened a special meeting of the Management Committee of the Association in order that the issue of the plaintiff's suspension and its implications might be discussed and appropriate action determined. The motion as amended passed by the Management Committee was to the effect that the Committee acknowledged the divisiveness of the issue of the suspension of the plaintiff and expressed concern that it could split the Association. It said that it thought that the issue was likely to be resolved centrally by the end of UUC annual general meeting. The Management Committee adjourned consideration of the matter to a Management Committee meeting to be held a week after the Ulster Unionist Council meeting. The matter would not in the meantime be discussed by either the Management Committee or the full Association save in the event of a General Election being called before then in which case the Chairman would convene a special meeting of the Management Committee.
The convening of the meeting of 22 March 2001
Following the deposit in the Association office of a requisition for a special meeting of the Association addressed to the Hon Secretary and purporting to be supported by 56 signatures the chairperson called a special meeting of the Association for 22 March 2001 to debate the motion.
"The North Down Ulster Unionist Association has no confidence that Peter Weir MLA can win the North Down Parliamentary seat at the General Election. The Association hereby deselects him as a candidate and instructs the Management Committee of the Association to take urgent and appropriate action to obtain a new Parliamentary candidate."
The plaintiff applied ex parte and obtained an injunction to restrain the holding of the meeting which was postponed pending the decision of the court. The court continued the injunction in place until next Tuesday by when it was believed the appeal by the plaintiff would be determined. It is now clear that it will not be decided by then.
The meeting of the Officers of 29 March 2001
A meeting of the officers of the Association took place on 29 March 2001 to consider and determine that the proper interpretation of the term "Ulster Unionist candidate" appearing in Rule IV(3) of the rules of the Association and the proper interpretation of the term "democratic selection" in Rule IV(3) of the rules.
At the meeting it was agreed by all the officers present that the proper interpretation of the term Ulster Unionist candidate appearing in Rule IV(3) of the Rules meant a member of the Ulster Unionist Party. They agreed that a suspension from the UUP by a Disciplinary Committee under Rule XIX of the constitution and rules of the Ulster Unionist Council adopted by the Council on 18 March 1989 meant that a person immediately ceased to be a member of the UUP and thereby a member of the relevant Association during the term of the suspension. It was further agreed that paragraph IV(3) gave the right to the Association to democratically deselect a candidate. The mechanism for democratic deselection of a candidate is through the calling of a special meeting of the Association under Rule VIII(L)
The convening of the meeting of 2 April 2001
The Chairman relying on the powers conferred on her by Clause VIII called a special meeting of the Association for 8.00 pm on 2 April 2001 to discuss the same motion that it had been intended put before the meeting on 22 March 2001.
Determination of the application for an injunction
It is common case that the rules of the Association constitute a contract between the members and called to be construed and applied as terms giving rise to contractual rights and obligations. It is common case that on matters of law the court's jurisdiction cannot be ousted by any provision in the rules of the Association.
It is apparent from Lord Diplock's speech in American Cyanamid –v- Ethicon [1975] AC 396 that the principles that he was there stating applied where the interlocutory application to restrain a defendant from doing acts allegedly in violation of a plaintiff's legal rights is made on contested facts or where difficult questions of law arise requiring detailed arguments and mature consideration. It is clear from Associated British Boards –v- TGWU [1989] 2 All ER 822 that if the resolution of the issues in dispute would be resolved by the determination of a point of law that can be answered at the interlocutory stage the court should decide the point and dispose of the matter (see Lord Goff at 831 in particular).
Mr Morgan argued that the interpretation of the rules read with the UUC constitution is clear and that on the proper construction of those rules applying the modern approach stated by Lord Hoffman in Investors Compensation Scheme Limited –v- West Bromwich Building Society [1998] 1 All ER 98 it is clear that the Association has power to deselect a candidate and/or proceed to select a new candidate. He argues that in the circumstances the plaintiff can no longer be considered to be a candidate for the Ulster Unionist Party and so the power of the Association to a point they select a candidate has come into play.
The Association is affiliated to the UUC and the plaintiff joined the Association on that basis. As a member of the Association he is also a member of an organisation or movement which constitutes a political party registered as such under the provisions of the Registration of Political Parties Act 1998. Under the 1998 Act each registered party is obliged to have a registered leader and nominating officer responsible for the submission of lists of candidates and the approval of designations and emblems used on nomination and ballot papers at elections.
Under the terms of the UUC rules the plaintiff was suspended by the Disciplinary Committee from membership of the Ulster Unionist Party. While the plaintiff asserts that there is no such thing as the Ulster Unionist Party it is clear that such a party does exist as a registered political party for the purposes of the 1998 Act and holding itself out as such in elections as a political party. While it may differ from other more centralised political parties in its organisation and structure it is still meaningful to described it as the Ulster Unionist Party.
Clause XIX(3) of the UUC rules states in clear terms that an expelled or suspended member ceases to be a member thereof and shall forfeit all the rights and privileges of party membership. While the expulsion or suspension decision may be revoked on appeal until it is the individual concerned is no longer to be regarded as a member of the party for the period of expulsion or suspension.
Since the plaintiff is to be treated as suspended and deprived of the rights and privileges of party membership it is inconceivable and would not be legally permissible for the nominating officer under the terms of the UUC constitution and rules to nominate him as an Ulster Unionist candidate at the Parliamentary Election. The plaintiff could not hold himself out as a member of the Ulster Unionist Party. The consequence of suspension accordingly is to result in the plaintiff being no longer capable of being considered as the Ulster Unionist Party candidate for North Down in the forthcoming Parliamentary Election.
It follows from that that the Association in order to fulfil its objects in particular Clause IV(2),(3) is entitled to arrange for the democratic selection of an Ulster Unionist candidate. In practical and legal terms the plaintiff while suspended could not be nominated as a candidate to represent the Ulster Unionist Party. Mr Horner argued that it is theoretically possible for a person who is not a member of the Ulster Unionist Party to be selected as a candidate and cited by way of example the late Enoch Powell MP. Inasmuch as the plaintiff is not at this point in time a selected candidate to stand for the UUP, the question whether he would be entitled to put his name forward to be considered for selection does not immediately arise in this application. However it seems to me to be inconceivable that he could be treated as capable of fulfilling the requirements for a selected candidate since he would not be entitled to hold himself out as a member or as a representative of the UUP in the forthcoming election.
Approaching the matter in that way it is not a question of deselecting the selected candidate. Having been suspended he is no longer to be treated as an Ulster Unionist candidate standing for the Ulster Unionist Party, the registered political party under whose banner the plaintiff was selected to stand.
I further consider that the powers of the Association in Clause VIII(K) are wide enough to empower the Association to deselect a selected candidate. It may become manifestly clear that a selected candidate is unsuitable as a candidate for a variety of reasons such as his conduct, behaviour, past connections, mental abilities and so forth. If the plaintiff's argument were correct then a selected candidate would be irremovable or only removable by the implication of some implied term the terms of which would be uncertain and unclear. However the power to deselect which arises under Clause VIII(K) would have to be exercised for a proper purpose. It may be that simply to seek to remove a selected candidate because a new majority now disagree with the views he held to the knowledge of the Association of the time of his selection would not be a proper exercise of the power for a proper purpose. Those seeking his removal would be failing in their duty to give unqualified support to the candidate in all the circumstances. Where a person is suspended by the party, however, that brings about such a radical change of circumstances that, if contrary to my view that the suspension disqualified him as a selected candidate, the Association would be entitled following its objects in Clause IV(2) to exercise its power to deselect.
Mr Horner argued that by virtue of the undertaking given by the plaintiff on being selected he had a contractual right to be retained as a selected candidate. Paragraph 4 of the undertaking, however, provides that the selected candidate undertakes to support loyally and adhere to the constitution policies and rules of the Ulster Unionist Council and the resolutions and directions of its Executive Committee. Since he has been suspended under the terms of the constitutions and rules of the UUC he is bound by the terms of his undertaking as set out above.
The plaintiff contends that the proposed meeting is not properly constituted since he has not been given notice and he is being precluded from attending the meeting. As pointed out by Tucker LJ in Russell –v- Duke of Norfolk [1949] All ER 109 at 118 the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration. As a consequence of suspension from the UUP the question arises as to whether he remains a member of the Association or remains entitled to exercise the rights of a member during the period of supervision. I accept Mr Morgan's argument that the consequence of suspension is to suspend him from the rights and privileges of membership of the party and this affects his rights as a member of the Association the membership of which has made him a member of the Ulster Unionist Party. Since he is not entitled to exercise the rights and privileges of membership he is not entitled to notice of the meeting nor to attend it. Since the effect of his suspension has been to disqualify him as a selected candidate for the Ulster Unionist Party there is nothing at the meeting which he could say or do that would affect the outcome. Even if he is a party interested in the outcome, as a person having none of the rights of a party member his interest is not one based on a legal right that he can assert or seek to protect.
In the result accordingly I hold that the law is clear and that the plaintiff is not entitled to an injunction to restrain the meeting proceedings.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
BETWEEN:
Plaintiff;
LADY SYLVIA HERMON, ROY DAVIES AND PAMELA GRANT-STEVENSON SUED ON THEIR OWN BEHALF AND ON BEHALF OF AND REPRESENTATIVES OF NORTH DOWN UNIONIST ASSOCIATION
Defendants.