United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A ENGLAND Devondale Carr Lane Sutton-on-the-Forest York YO6 1EB
For the Respondents (PTC)	PROFESSOR J BEATSON (of Counsel) Messrs Russell Jones & Walker Solicitors Swinton House 324 Grays Inn Road London WC1X 8DH
For the Respondents (CPSA)	MR B LANGSTAFF QC Messrs Pattison & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


MR JUSTICE MORISON (PRESIDENT):

This is an appeal from two decisions of the Certification Officer in connection with the proposed amalgamation of two civil service trade unions known as the PTC and CPSA. Under section 104 of the Trade Union and Labour Relations (Consolidation) Act 1992 ['the Act'], an appeal lies to the Employment Appeal Tribunal on any question of law arising from any decision of the Certification Officer made under section 103 of the Act.

The legislative framework

The Certification Officer is appointed by the Secretary of State, after consultation with ACAS. His statutory responsibilities include a duty to act, it was accurately, but colloquially, described in argument, as a policeman or watchdog over the way Trade Unions effect an amalgamation. The statutory provisions in relation to amalgamation are contained in a discrete Chapter of the Act, Chapter VII.

A summary, only, of most of the main provisions will suffice for the determination of the questions at issue in the appeal.

Two or more Unions may only amalgamate if the Certification Officer has approved 'the instrument of amalgamation' and if statutory requirements relating to notices to, and balloting of, members of each relevant Union, have been complied with. Before the 'instrument' is put to members, it must first be approved by the Certification Officer and must comply with the relevant statutory regulations [presently, the Trade Unions and Employers' Associations (Amalgamations, etc) Regulations 1975]. After the instrument has been approved by the Certification Officer, the Unions must ballot their members on a resolution to approve it. The ballot papers must either be accompanied by a copy of the instrument or a full and sufficient summary of its terms.

Section 100 of the Act provides that a resolution approving the instrument must be passed on a ballot which is held in accordance with the Act. A simple majority of those voting is sufficient unless, which is not applicable here, the Union's rules expressly provide otherwise. Before the ballot is held, a "qualified independent person", namely the "scrutineer" must be appointed by the union. A person is only qualified to become a scrutineer if he fulfils certain requirements. His independence is statutorily protected. His duties are specified, and include a duty, after the ballot has been concluded, to "make his report to the trade union as soon as practicable".

Subsection (8) of section 100A provides:

"The trade union shall, before the scrutineer begins to carry out his functions, either-

(a) send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or

(b) take all reasonable steps for notifying members of the name of the scrutineer as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention."

By section 100E of the Act, the scrutineer's report is required to state the number of voting papers sent out, the number returned, the numbers of valid votes for and against the resolution, the number of spoiled or invalid papers and the identity of the organisation which counted them, which may be the same as the scrutineer. Further, the scrutineer's report must state whether the scrutineer is satisfied about a number of matters:

"(a) that there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot,

(b) that the arrangements made ....with respect to the production storage distribution return or other handling of voting papers used in the ballot, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur, and

(c) that he has been able to carry out his functions without any such interference as would make it reasonable for any person to call his independence in relation to the union into question;

and if he is not satisfied as to any of those matters, the report shall give particulars of his reasons for not being satisfied as to that matter."

The report is also required to state whether the scrutineer has inspected the register, and if he did, whether it was on his own initiative or at the request of a Member; and in relation to any third party whom the scrutineer called on for assistance, whether he was satisfied with their performance and, if not, why not. Until that report has been received, the Union must not publish the result of the ballot.

Section 100E(6) provides that

"The trade union shall within the period of three months after it receives the report-

(a) send a copy of the report to every member of the union to whom it is reasonably practicable to send such a copy; or

(b) take all such other steps for notifying the contents of the report to the members of the union (whether by publishing the report or otherwise) as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention."

Amalgamation cannot ultimately take place until the instrument of amalgamation has been registered by the Certification Officer. He must not register the report until after 6 weeks after he has received an application for registration; and the Union cannot apply for registration until after section 100E(6) has been complied with.

Section 103(1) empowers a member of a trade union to make a complaint to the Certification Officer where he claims that the union:

"(a) has failed to comply with any of the requirements of sections 99 to 100E, or

(b) has, in connection with a resolution approving an instrument of amalgamation or transfer, failed to comply with any rule of the union relating to the passing of the resolution."

By subsection (3), if the Certification Officer finds a complaint to be justified-

"(a) he shall make a declaration to that effect, and

(b) he may make an order specifying the steps which must be taken before he will entertain any application to register the instrument of amalgamation or transfer;

and where he makes such an order, he shall not entertain any application to register the instrument unless he is satisfied that the steps specified in the order have been taken."

The complaints

Some Members of the PTC and one of the CPSA made complaints to the Certification Officer. Relevantly, they complained that both unions had failed to comply with their own rules in putting the resolution to the ballot; and secondly, that the PTC failed to comply with the requirements of section 100E(6) because it failed to notify the members of the contents of the report and adopted a means of communication with Members which did not satisfy the requirements of the subsection.

The Certification Officer's decision

In relation to the first complaint, the Certification Officer decided that, as the rules of the unions which had allegedly been broken were not rules falling within section 103(1)(b) of the Act, he had no jurisdiction to entertain the complaint.

In relation to the second complaint, he dismissed it, holding that what was sent to members was sufficient and that the means of communication was lawful. He went on to hold, apparently, that even if had decided either or both aspects of the second complaint in favour of the complainants, he would have made no order under section 103(3)(b).

The Facts

Both Unions have rules regulating the distribution of power between the various bodies within them. Under the Rules of the PTC, the governing body of the Union "shall be the annual Delegate Conference, which shall determine the principles and policy of the Union" and "between conferences the management and control of the Union shall be vested in the NEC. The NEC shall conduct its affairs in accordance with these rules and with the principles and policies determined by Delegate Conference." The rules of the CPSA are similar, and reference was made to Rules 6, 7 and 11, which do not need to be set out.

It is the complainants' case that the decision of the NECs to ballot the members on the resolution for amalgamation was a breach of the Rules, in that it was a decision arrived at in breach of a decision of the governing body of the Union. The NEC, it is argued, were not entitled to go out to a ballot until after the governing body [Conference] had approved the draft rules to be adopted by the merged union.

In relation to the second complaint, the PTC did not send a copy of the scrutineer's report to all members but it adopted as a means of circulation what it stated to be its practice when matters of general interest to all its members needed to be brought to their attention. The PTC publishes on a regular basis a journal. By the rules of the union, retired members, associate members and 'retained' members ['the group' - which comprised just over 4% of the membership] were entitled to receive a free copy of the journal. The method adopted was to send the leaflet to 7,000 distribution points with instructions that it should be given to all members. It was accepted by the Union that members of the group might not have received what was sent. It was the Union's case before the Certification Officer that its method of distribution was based on the 'ordinary' and therefore active membership "rather than categories of members such as retired, associate and retained members."

As to the contents of the report, the news sheet or leaflet which was distributed contained all the relevant information about the ballot papers but it did not contain anything to show that the scrutineer was satisfied about the various matters upon which he is obliged to report, including, importantly, that he had no grounds for believing that there had been any contravention of the Act.

The parties' arguments on the first appeal

A. The complainants

Mr England represented all the complainants, and did so with skill and to good effect. We summarise his arguments:

On the first question, he submitted that Parliament had deliberately omitted the word "expressly" from section 103(1)(b) of the Act. In other words, whilst the rule of the union in question must relate to the passing of the resolution it need not expressly so relate. He drew a contrast with other provisions of the Act where the word "express" or "expressly" is used. He said that the Certification Officer's acceptance of the argument that Mr England was giving a meaning to the subsection which made the words "relating to the passing of the resolution" redundant, was illogical and wrong. He also says that his refusal to adopt what he called a 'wide' interpretation of the words of the subsection begged the very question at issue. The question was not whether the words bore a wide or a narrow construction: the question was how they should be construed. All that was required was that the Rule should have been actively operated in relation to the passing of the resolution. That was a pure question of fact. In this case, the rule related to the right of the NEC to put the resolution to the members; and therefore the rule in fact related to the passing of the resolution. The "passing of the resolution" involves two elements: "the passing" and "the resolution". The "passing" related to the ballot and the size of the majority; "the resolution" relates to the how the resolution is determined. Section 103(5) provides that

"The validity of a resolution approving an instrument of amalgamation ...shall not be questioned in any legal proceedings whatsoever (except proceedings before the Certification Officer under this section or proceedings arising out of such proceedings) on any ground on which a complaint could be, or could have been, made to the Conciliation Officer under this section."

Mr England pointed out that section 103(1)(b) must have been intended to give a complainant the right to challenge the 'validity' of a resolution. The complainants' challenge to the resolution was a challenge to its validity. He submitted that this point supported his contention that the a rule "relating to the passing of the resolution" were apt to include a rule which related to how the resolution was determined.

B. The Unions

Mr Langstaff QC represented the CPSA, who are concerned only with the first appeal, although also very interested in the outcome of the second. Professor Beatson represented the PTC which is a party to both appeals. We are grateful to both counsel for their help.

On the first appeal, save to a limited extent, their arguments were sufficiently similar to be taken together.

We summarise the main points which they made.

1. The statutory requirements in sections 99 - 100E concern and regulate the holding of the ballot; they are not concerned with the process leading up to the putting of the resolution to the Members.
2. The policy of the Act is to encourage unions to amalgamate if they wish to do so, and to remove any hurdles in the union rules which obstructed that process. Thus, section 97(4) applied the provisions of the statute "notwithstanding anything in the rules of any of the trade unions concerned."
3. Contrary to Mr England's argument, the provisions of section 103(5) did not widen the scope of the jurisdiction of the Certification Officer, it simply ensured that what fell within his remit was exclusively to be dealt with by him.
4. Mr England's construction of section 103(1)(b) stretches any connection with the resolution "beyond breaking point", as the Certification Officer decided. It would involve re-writing the statute to read: "failed to comply with any rule of the union relating to the amalgamation".
5. The subsection is confined to rules which concern the mechanism or procedure by which a resolution is put to the membership, or passed, such as rules relating to the voting period for a ballot on amalgamation. The Certification Officer was right to draw a distinction between a rule which relates to the formation of the resolution on the one hand, and a rule which relates to whether the resolution has been properly passed, on the other.
6. A narrow construction of the Act, which required a 'direct link' between the rule and the passing of the resolution, would give effect to the general purpose of the Act which is to confine the jurisdiction of the Certification Officer rather than confer upon him the power to inquire into breaches of union rules on a wholesale basis. Such a construction would fit in with the scheme of the Act. Only rules that are inconsistent with the statutory requirements in section 99 to 100E are disapplied by section 97(4) of the Act.
7. It was Mr Langstaff's submission that there was a linkage between section 100 and section 103(1). Section 103(1)(a) was apt to cover those cases where there had been a breach of section 99 [due notice of the instrument of transfer] or a failure by the Union to comply with the statutory requirements for the holding of a ballot contained within section 100A to E. The requirement to comply with section 100A to E is imposed by section 100. Section 100(2) brings the rules of a union into play where they require a greater than a simple majority for the passing of a resolution. If there has been a breach of such a rule then section 103(1)(b) is apt to cover it. Such a rule would relate to the passing of the resolution but it would not fall within section 103(1)(a) as it was not a statutory requirement. Counsel submitted that that was the only rule in respect of which non-compliance could lead to a justiciable complaint under section 103(1)(b), because if there was any other rule which was broken in circumstances where there had been no breach of sections 99 or 100A to 100E, any such rule would be disapplied by section 97(4). Professor Beatson submitted that there was a difficulty with this view because a breach of a rule contemplated by section 100(2) would make the Union in breach of section 100 and, thus, a complaint relating to it would fall within section 103(1)(a).

The parties' arguments on the second appeal

A. The complainants

It is important to note that Mr England has confined his appeal to an alleged breach of section 100E(6) relating to the duty of the PTC to send to its members the scrutineer's report, or notifying them of its contents. As noted above, this appeal falls into two parts:

(a) the method of communication

(b) the contents of what was communicated.

Mr England submits that the Union ought either to have published the report in the Journal or sent a copy of it to members, using the address lists which were used to send out the ballot papers. He said that the Certification Officer could not properly have concluded that it was the Union's practice to use the distribution point system when communicating matters of general interest to all its members, when the Union accepted that its practice was based upon communication to the ordinary, active members, which excluded the 4% group.

As to content, he submitted that it was not enough for the PTC only to have informed the members of parts of the report. If the actual report was not to be enclosed, then all the relevant parts of it should have been summarised so that the Members could reasonably have been satisfied that, according to the independent scrutineer, the whole process had been properly completed.

B. The PTC

Professor Beatson submitted that there was an appeal to the EAT only on a point of law. The Certification Officer heard evidence as to the method of distribution which the PTC adopted, and concluded that the distribution point system was a "well established and largely effective means of passing information on to its members". He concluded in paragraph 39

"I am satisfied however that the PTC followed its normal practice in sending members, via the distribution points, the scrutineer's report on the ballot."

That was a finding which, on the evidence, he was entitled to reach, even though he aware that by adopting this practice the group were not normally covered by the distribution point system "and would not therefore receive information sent out by such a system." The Certification Officer was correct to hold that "section 100E(6)(b) does not require all members actually to receive notice and similarly that the general practice may exclude some members."

As to content, the Professor did not seek to challenge the holding of the Certification Officer that the requirements of section 100E(6) are not fulfilled by the inclusion of a statement in a document sent to members that a copy of the full report will be supplied on request. He also accepted that the Certification Officer was correct to seek to identify the purpose of sending the report to the Members. He submitted that the ballot result was given, and nothing in the scrutineer's report which was omitted raised any issue which might lead members to question the outcome of the ballot "and it was not therefore necessary to include it".

If there was a breach of the Act it did not render the Union's application to have the instrument of amalgamation registered void. One must assess "the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act": R v Governor of Canterbury Prison, ex parte Craig [1991] 2 QB 195, at 204.

The Decision

The two Lay Members have played an important role in this appeal.

It is our unanimous view that the points which Mr England has raised and argued deserve close attention.

The first appeal.

The Certification Officer fulfils an administrative and a judicial role. In relation to amalgamations, he is there to ensure that the statutory provisions laid down by Parliament are observed. Prima facie, any breach of the requirements is serious: they are there to protect the members from an abuse of power. The provisions fulfil two important roles: first to ensure that the membership is kept fully informed whilst the decision making process is being concluded; and second to ensure that the ballot is properly conducted, supervised and audited by an independent scrutineer in whom the membership can have confidence.

Although there may be room for doubt as to the Certification Officer's jurisdiction under section 103, the steps which a Union must take to comply with their statutory obligations are clearly set out and, in principle, there should be no excuse for any breach of them. Whilst we can understand the desirability of completing the processes with due despatch, unions should not put themselves under such pressure that they cannot then fulfil the obligations imposed upon them. It is quite regrettable that the PTC should have failed to comply with their obligations under section 100A of the Act. That was a breach found by the Certification Officer, but in respect of which he decided not to make any order under section 103(3)(b). Neither the breach itself nor the Certification Officer's decision to make no such order forms any part of this appeal.

In general terms, we are of the view that breaches of the statutory provisions should lead to corrective action being taken, even if the effect of it may be to delay the amalgamation process. In this case, when the members were balloted, over 83% of voters voted 'yes' to amalgamation. However, this fact alone should not lead to any complacency with regard to the need for due observation of all the statutory requirements. The statute provides protection for all the members, whether they are part of the mainstream of the union, or members of a particular interest group, or members of what might be called, in military terms, 'the awkward squad'. Everyone should have the chance to make their contribution, and it is the Certification Officer's duty, as we see it, to be vigilant to protect minority interests as well as to have regard to the will of the majority.

As to the first appeal, we have come to the clear conclusion that the complaint which was made did not fall within section 103(1)(b). We arrive at this conclusion partly by reference to the policy of the Act.

The 1992 Act is a consolidating statute which relates, in part, to the formation, administration and amalgamation of trade unions. Within the framework of the legislation, power to supervise trade unions is distributed between the criminal and civil courts, the Certification Officer and Industrial Tribunals. Thus, for example, the Certification Officer is solely responsible for issuing or refusing a certificate of independence [subject to an appeal to the EAT]. If a member complains that the Trustees of his Union have been misapplying Union funds then it is to the civil court that he will turn. If a Trade Union refuses or wilfully neglects to supply a copy of the union rules to a member, it, and any responsible officer, may be guilty of a criminal offence. A member who complains that he has been unjustifiably disciplined by his Union may complain to an Industrial Tribunal. In certain instances a member is given the option to make a complaint to the Certification Officer, or to bring proceedings in the Court: for example, under section 45C which relates to a Union's failure to ensure that a person convicted of an offence under the Act does not play a role in the governance of the Union for a specified period [see also, sections 25 & 26 in relation to a Union's failure to maintain a proper register of members and allow access to it].

Under Chapter V of the Statute, entitled "Rights of Trade Union Members", and which includes such matters as:

(a) the right to be balloted before being called on to take part in industrial action,

(b) the right not to be denied access to the courts, and

(c) the right not to be unjustifiably disciplined,

the Certification Officer has no jurisdiction: these matters are for the courts or industrial tribunals, as the case might be.

The statute prescribes the only circumstances in which a complaint may be made to the Certification Officer. His authority to act derives solely from the statute: he has no inherent jurisdiction or power. Therefore, when jurisdiction is conferred upon him, he is told precisely what he can do, and his powers are limited. Thus, for example, the Certification Officer has power to grant a declaration where he is satisfied that a member has been denied lawful access to the Members' Register [section 25]; whereas, the Court [section 26] has power, in addition, to grant injunctive relief, whether interlocutory or final.

Section 110 of the Act confers on members who, inter alia, complain of a breach of Union rules relating to "the balloting of members", or to "the constitution or proceedings of any committee, conference or other body", to apply to the Commissioner for the Rights of Trade Union Members for assistance with civil proceedings.

That background suggests, we think, that it is, prima facie, improbable that Parliament intended to confer on the Certification Officer the power to adjudicate upon an issue as to whether the Unions were acting constitutionally in putting forward to their members the relevant resolution. In general terms, the Certification Officer is supervising the performance by the Union of their statutory obligations; in general terms, it is the Courts and Tribunals which are there to protect Members from breaches of rules. We start, therefore, with a pre-disposition towards, what has been called in argument, a narrow interpretation of section 103(1)(b) because we think that would be consistent with the way Parliament has allocated the power of supervision over trade union activities. If a Union has acted unconstitutionally in presenting the resolution [as to which we make no assumption] then the Court would be the natural forum for dealing with such a breach: it would have the power to make corrective orders and the member would have the right to seek assistance from the Commissioner. However, if a rule related to the balloting process itself, that would be a matter falling within the Certification Officer's role as a watch-dog. He, alone, has the power to register the instrument of amalgamation; he is there to make sure that the statutory balloting procedures have been correctly observed, and, in that context, it would, we think, be surprising if he did not also have power to rule on a complaint that the Union had failed to comply with its own balloting rules. A serious breach by the Union of its own rules in that connection might well be considered by him as justifying a refusal of registration until the rule had been complied with. In these circumstances, the Certification Officer's lack of coercive power, in the sense of granting injunctive relief, would not be an impediment to the way he carried out his duties. If the rule in question related to the passing of the resolution in the narrow sense, then he could refuse to register until after, for example, a new ballot had been held. If the rule related to the competence of the Executive Committee, as Mr England suggests, then it is less easy to understand what steps the Certification Officer could specify under section 103(3)(b).

But in any event, as a pure matter of construction we favour the approach advanced to us by counsel on the Unions' behalf. There must, we think, be a 'direct' link or relationship between the rule and the way the resolution is passed. A rule which relates to the constitution of the Union, even if it indirectly affects the lawfulness of the resolution is not a rule which relates to its passing by a ballot of the members. This construction does not restrict or limit the rights of members to challenge what their union has done; all it does is to prevent the Certification Officer from becoming embroiled in matters which, we think, Parliament has sensibly left to the Courts. The absence of the word "expressly" does not seem to us to be important. The answer to Mr England's point is that such a word was unnecessary because the language and context makes it clear that the rule must relate to the passing of the resolution, and not to the way it came to be put forward in the first place.

Nor do we think that section 103(5) helps Mr England's case. If the validity of a resolution can be challenged on the basis that it was passed in breach of a union rule, then that is a matter which falls within the Certification Officer's jurisdiction; if the validity of the resolution can be challenged on the basis that it was unlawfully proposed in the first place, then that is not a matter for the Certification Officer but for the Courts. The fact that a complaint is made which challenges the validity of a resolution says nothing about whether it is a complaint which falls within section 103(1)(b). It depends whether the complaint relates to the way the resolution was passed on a ballot.

We have to say that we did not find Mr England's reference to the 1964 Act of any assistance.

In relation to the difference between counsel in their approach to the proper interpretation of the Act, we would say that, had we been required to decide between their arguments we would have concluded:

8. A breach of a rule within section 100(2) falls within section 103(1)(b) rather than (a), because section 100(1) is a requirement which would give rise to a complaint under (a); whereas section 100(2) is not a requirement and would, therefore, fall within (b).
9. Mr Langstaff was not correct in his submission that every other rule relating to the ballot not falling within section 100(2) would be disapplied by section 97(4). Both Mr Langstaff and the Certification Officer may have overstated the effect of section 97(4). In our view, as at present advised, section 97(4) does not disapply any rule of the Union which impedes an amalgamation; it only disapplies those rules which are inconsistent with the express statutory requirements in Chapter VII. We would have been minded to accept Professor Beatson's submission that there may be rules, such as those affecting the timing of a ballot, which relate to the passing of a resolution, a breach of which could give rise to a complaint under section 103(1)(b).

Accordingly, we consider that the Certification Officer did not have jurisdiction to consider the complaints brought under section 103(1)(b) of the Act with which this appeal is concerned, and the first appeal must be dismissed.

B. The Second Appeal

We can deal with this appeal relatively shortly, although aspects of the Certification Officer's adjudication on this matter has caused us some concern.

As to the method of communication, we see the force of Mr England's submission. How can it be said both that the method the PTC adopted was the practice of the Union to take to bring to their attention matters of general interest to all its members, and that a significant minority group of members might well not be reached by that practice? However, at the end of the day, we feel bound to conclude that the Certification Officer was entitled to hold, on the facts before him, that the method adopted fell within section 106E(6). He heard the evidence, and we have not. We must respect his decision even if we ourselves might have reached a different one. There is no requirement that the method should reach or be targeted at every member. That said, we should stress to the Certification Officer the importance of his role in protection of minorities. Section 100E is an important requirement which must be complied with. Its purpose is, amongst other things, to ensure that all the members can be given confidence that all of the procedures have been observed. The provision of information to them as to both the identity of the scrutineer and the contents of his report, will be likely to form the material upon which a member decides whether to make a complaint. The potentiality for such complaints must not be stifled by less than full or proper disclosure.

In relation to the contents of the report, the Certification Officer said this:

"The purpose in notifying the contents of the scrutineer's report to members is twofold. First to advise the members of the outcome of the ballot, second to enable members to make an informed judgment on whether the ballot has been conducted in accordance with the statutory requirements and whether there are any matters which might lead to the ballot being questioned. Against that background in my judgment the parts of the scrutineer's report which must be notified to members will very much turn on the material in that report. Without question any notification to members should contain full details of the number of voting papers distributed; the number of voting papers returned; the number of valid votes cast in the ballot for an against the resolution; and the number of invalid votes. Additional information ought to be included where the scrutineers report concerns about the state o the register of members, or about the conduct of the ballot.

In this instance the scrutineer's report raised no issues that might lead members to question the outcome of the ballot and the notification to members provided the minimum information set out above relating to the ballot result. I am satisfied that the omission of all of the material ... did not work to the detriment of any member; the complainant himself confirmed that there was nothing in [the omitted paragraphs] to cause him any concern. I therefore find that in taking the action that it did, the union met the requirements of section 100E(6)."

In our judgment, this passage demonstrates an error of law. In the first place, the statute itself does not draw a distinction between informing members of the matters specified in section 100E(1) [that is, what the Certification Officer has stated to be the 'minimum' information] on the one hand, and informing them of the matters referred to in subsections (2) and (3), on the other. By seeking to draw a distinction between the importance of the information in these subsections the Certification Officer has, in our view, put a gloss on what Parliament has provided. Second, he appears to be saying that because the omission of the information contained in subsections (2) and (3) was not detrimental there was no breach of the statute in failing to communicate it. Section 103(1)(a) does not say anything about 'detriment' having to be shown or proved. What a member is complaining of is a breach of a statutory requirement. If a breach has occurred [and the complaint is justified] then the Certification Officer "shall make a declaration to that effect" and "may make an order" requiring certain action to be taken. Third, with respect, the Certification Officer's reasoning is flawed: if one of the purposes of the sub-section is to enable members to make an informed judgment as to whether the ballot has been properly and lawfully conducted, it is difficult to see how a failure to tell them that a certificate of 'satisfaction' has been given by the scrutineer was not detrimental. It seems to us that the Certification Officer has confused the question of breach with the question of remedy.

In our judgment, the only conclusion open to the Certification Officer had he properly directed himself to the statutory provisions would have been to find that the PTC were in breach of section 100E(6) of the Act by reason of their failure to inform the membership of the contents of the report, either by providing them with an accurate summary of the full terms of the report, or by sending them a copy of it. Accordingly, he was obliged, in our judgment, to have made a declaration to that effect.

The Certification Officer went on to hold that, in any event, he would not have made any order under section 103(3)(b). He relied upon the fact that a substantial majority of the PTC members had voted in favour of the amalgamation, that there was an absence of any complaints or concerns about the ballot, and that, accepting the evidence he heard, there was a degree of urgency to completing the amalgamation.

We have sympathy with this approach. But, if he had been satisfied that there had been a breach, he could, and we think, should, have indicated to the PTC that, unless they took immediate steps to correct the position, he would be minded to make an order, the effect of which would be to cause significant delay to the amalgamation process. No doubt he would have been told by the PTC that they would forthwith send the whole report out to all the members identified on their address lists, and, on that basis, could properly have made no order. An indication that he would have done nothing, even if satisfied that there had been a breach, seems to us not to be sufficient. To be effective, the watch-dog must, on occasions, be prepared to bark.

On this appeal, we understand that the PTC are prepared to give an undertaking to send a copy of the scrutineer's report to their members within a limited period of time. If so, on that basis we would see no need to ask the Certification Officer to review his decision not to make an order under section 103(3)(b); although we are clear that he should have made a declaration under section 103(3)(a).

We shall invite the parties to address the President on the precise terms of the order to give effect to this judgment.