United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN CAVANAGH MR TOM RESTRICK (Of Counsel) Instructed by Mr T J Sharpe Messrs Gregory Rowcliffe & Milners Solicitors 1 Bedford Row London WC1R 4BZ
For the 1st & 2nd Respondent	MR PAUL EPSTEIN (Of Counsel)


 


MR JUSTICE LINDSAY (PRESIDENT)

1. This is the full hearing of the appeal of Margaret McDonagh (appealing on her own behalf and on behalf of all other members of the Labour Party) in the matter of Mr Zafar Ali and Mr Harmohinderpal Singh Sohal -v- Margaret McDonagh, who, as General Secretary of the Party, is sued as indicated. Before this Tribunal Mrs McDonagh has appeared by Mr Cavanagh and Mr Restrick; both Mr Ali and Mr Sohal have appeared by Mr Epstein.
2. By way of a brief outline the position is this: Mr Ali and Mr Sohal, both of Asian origin, were full members of the Labour Party. They had been members for a good few years. They wished and hoped to be selected as Labour Local Government candidates for the May 1999 Elections to Slough Unitary Local Authority. However, in late 1998 they were then told that some incidents of their membership of the Labour Party were suspended. They were not suspended from membership in total but were suspended "from office or representation of" the Labour Party. Accordingly during the period of their suspension they could not be nominated to the panel of prospective Labour Local Government candidates from whom the actual Labour Local Government candidates would be selected. They lost all chance of being so selected and hence could not possibly become Labour Councillors at those May 1999 elections. They each resigned from the Labour Party and each then issued proceedings in the Employment Tribunal claiming racial discrimination. The Employment Tribunal heard a Preliminary Issue: had it jurisdiction to hear their cases? It ruled that it did have jurisdiction. The Labour Party (it is convenient to call the Appellant that) now appeals to us.
3. The chronology is as follows. In 1984 Mr Sohal became a member of the Labour Party. At about the same time Mr Zafar Ali joined too. Each held Party office from time-to-time in the Slough Branch. On the 1st May 1997 Mr Sohal was elected on the Labour Party ticket as a Councillor to the Slough Unitary Authority for a period of two years. In ordinary course he would therefore expect to seek re-selection by the Labour Party in November 1998 with a view to the Local Elections in May 1999. In October 1997 Mr Ali, he says, applied to become a Labour Candidate at those May 1999 elections. In November and December 1997, according to Mr Ali, he encountered racist hostility and found that there was to be opposition to his candidacy, opposition which he attributed to his race. In May 1998 Mr Sohal, too, says that he found that he would be prevented from standing for re-selection.
4. On the 22nd September 1998 there was a meeting the National Executive Committee of the Labour Party at which one of the items of business was the reception of a report concerned with complaints against the Slough Labour Party. The NEC included several Ministers and other well-known political figures. As the Minutes of the meeting described the matter, it was dealt with as follows:-

"(iii) Slough Task Force. Consideration was given to a report (DO: 85/9/98) from the Task Force established by the NEC to inquire into complaints against Slough Labour Party. The document was presented by Vernon Hince. It was resolved

(i) that the recommendation set out in the report (DO: 85/9/98) be endorsed.

We are not concerned with whether Mr Ali and Mr Sohal had had the allegations against them sufficiently drawn to their attention or had had, by then, any opportunities adequately to defend themselves.

5. On the 22nd September 1998 each of the Applicants was sent a letter from the Assistant General Secretary of the Labour Party, Mr David Gardner. It said this:-

"Allegations that you may have been involved in a breach of Labour Party rules have been brought to the attention of national officers of the Party following a report of the NEC Task Force investigating the Slough Labour Party, These relate to the recruitment of members outside the provisions of the Party's rules and interference in the selection ballot for European candidates in Thames Valley. To enable these allegations to be further investigated and [sic] the NEC is being asked to authorise a full report to be drawn up with recommendations for disciplinary action if appropriate.

I write to give you formal notice that it has been determined that the powers given to the NEC under 6A.1 (a) of the Party's Rules should be invoked to suspend you from office or representation of the Party, pending the outcome of this investigation and any further action recommended by the Report.

As a result you will neither be entitled to attend Labour Party meetings as a delegate nor to represent the Party in any capacity.

The NEC has asked the Task Force to continue its investigation and you will be contacted in due course with details as to how it is intended to proceed with enquiries. It is hoped you will feel able to give your full co-operation when requested to do so."

At the foot of the letter as a postscript Mr Gardner writes:-

"(N.B. Rule 6A.3 says "A suspended member shall not be eligible to seek any office in the Party, nor shall s/he be eligible whilst such suspension is in force for nomination to any panel of prospective candidates nor to represent the Party in any position at any level".)."

The postscript represents a slight misquotation of the rule but not one that distorts its sense. In the Labour Party Rule Book of 1998 Section 6 is headed "Disciplinary Rules" and Rule 6A provides as follows:-

"6A Action by the National Party

6A.1 The NEC shall take such disciplinary measures as it feels necessary to see that all Party members and officers conform to the constitution, rules and standing-orders of the Party; such powers shall include:

(a) In relation to any alleged breach of the constitution, rules or standing-orders of the Party by an individual member or members of the Party, the NEC may, pending the final outcome of any investigation and charges (if any), suspend that individual or individuals from office or representation of the Party notwithstanding the fact that the individual concerned has been or may be eligible to be selected as a candidate in any election or by-election. The General Secretary or other national officer shall investigate and report to the NEC on such investigation. Upon such report being submitted, the NEC may instruct the General Secretary or other national officer to formulate charges against the individual or individuals concerned and present such charges to the National Constitutional Committee for determination with accordance with their rules."

Rule 6A.3 provides:-

"A "suspension" of a member whether by the NEC in pursuit of 6A.1 above or by the NEC in imposing a disciplinary penalty, unless otherwise defined by the decision, shall require the membership rights of the individual member concerned to be confined to participation in their own Branch meetings and activities as an ordinary member only and in ballots of all individual members where applicable. A suspended member shall not be eligible to seek any office in the Party, nor shall s/he be eligible for nomination to any panel of prospective candidates nor to represent the Party in any position at any level."

6. To revert to the chronology, on the 15th October 1998 eligible members of Slough Labour Party were invited by the Party's Regional Director to nominate themselves or nominate others as potential candidates for the May 1999 Local Government elections. As they were by then suspended, Mr Ali and Mr Sohal could not nominate themselves or be nominated. Whether Mr Ali's alleged application to become a Labour candidate for the May 1999 elections (an application which, he says, had been made in October 1997) represented a sufficient and effective previous nomination is not a matter before us. The invitation to all members in the Slough Labour Party included the following paragraph:-

"Enclosed with this mailing you will find information regarding the local elections next May. As part of this process Labour has launched Project 99 which has opened the way for individual members to self-nominate themselves as potential candidates. So if you feel you want to serve the community as a Labour representative, please apply to this office for an application form.

That letter does not specify a deadline for the completion and return of such application forms.

7. On the 22nd October 1998 Mr Ali and Mr Sohal were invited to an interview with a member of the National Executive Committee of the Labour Party convened for the 9th November 1998.
8. On the 9th November neither attended that interview but they instead issued a joint formal Press Release resigning from the Labour Party. The Press Release began:-

"This statement is to confirm that we have resigned from the Labour Party - effective 10 a.m. Friday the 6th November 1998. The decision was not an easy one but events have clearly shown that the Task Force appointed to investigate the Labour Part in Slough has no intention of dealing with the serious misconduct which permeates the Slough Labour Party."

9. On the 21st December 1998 each of Mr Ali and Mr Sohal lodged an IT1. After setting out some of the background to which we have already referred, Mr Ali's IT1 said:-

".... I am aware of the fact that two white Labour Party members who were the subject of serious allegations regarding breaches of Labour Party rules were not suspended or prevented from pursuing nomination for the Council elections. Furthermore another Asian Labour Party member was also suspended at the same time and in similar circumstances to myself. I believe that the purpose of the suspension was to deny me the opportunity of becoming a Councillor. I further believe I have been treated less favourably than the aforementioned two white Labour Party members, Councillor Cutting and Councillor Thorpe, and that this less favourable treatment was on racial grounds contrary to the Race Relations Act 1976."

Mr Sohal's IT1 had two paragraphs making virtually identical complaints.

10. On the 22nd January 1999 IT3s, Respondents' Notice of Appearance was lodged by the Labour Party. The Party said:-

"2. The Respondent contends that the Employment Tribunal does not have jurisdiction under section 54 of the Race Relations Act 1976 ... to hear the Applicant's complaint. This is because the alleged act of unlawful racial discrimination does not fall within the terms of any provision in Part 2 of the Race Relations Act 1976.

3. Further, and alternatively, even if, contrary to the above contention, the Tribunal does have jurisdiction to hear the Applicant's complaint, the Respondent denies that it has committed any act of unlawful racial discrimination against the Applicant as alleged or at all."

11. On the 19th May 2000 at a Directions Hearing at the Employment Tribunal the nature of the case sought to be made by Mr Ali and Mr Sohal was further explained. On that day the Tribunal recorded:-

"The case of each Applicant is that their respective and admitted suspensions by the Respondent were simply a device to ensure that each Applicant would be prevented from standing for election as a Local Councillor because the Respondent did not wish either Applicant to be elected in view of their ethnic background."

On the same day, 19th May 2000, the Tribunal began to hear the question which had been put before them as a Preliminary Issue. They said:-

"This matter comes before us for the sole purpose of determining whether or not the Tribunal has jurisdiction to hear each of the Applicants' complaints that they had been subjected to unlawful racial discrimination by the Respondent under the provisions outlined in section 12 RRA."

The hearing went on to a second day, the 21st July 2000, and the Employment Tribunal, meeting at Reading under the Chairmanship of Mr J.E. Goodman, then met also on the 7th August 2000. On the 19th September 2000 the unanimous decision of the Tribunal was sent to the parties. It was, as far as immediately relevant, that:-

"The Tribunal has jurisdiction to hear the Applicants' substantive complaints that they have each been subjected by the Respondent to unlawful racial discrimination under the provisions prescribed in section 12 RRA."

The Applicants' complaints that they had been discriminated against under section 4 of the 1976 Act were dismissed upon their having been withdrawn by the Applicants.

12. On the 27th October the Employment Appeal Tribunal received the Labour Party's Notice of Appeal.
13. Section 12 of the Race Relations Act 1976, the section referred to in the decision of the Employment Tribunal, appears in Part II of the Act, which Part is headed "Discrimination in the Employment Field". The section provides:-

"12. Qualifying Bodies

(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person -

(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or

(b) by refusing, or deliberately omitting to grant, his application for it; or

(c) by withdrawing it from him or varying the terms on which he holds it.

(2) In this section -

(a) "Authorisation or qualification" includes recognition, registration, enrolment, approval and certification;

(b) "Confer" includes renew or extend.

(3) Sub-section (1) does not apply to discrimination which is rendered unlawful by section 17 or 18."

Section 78 (1) of the 1976 Act provides definitions of the words "profession" and "trade"; "profession" includes any vocation or occupation and "trade" includes any business. Expanding section 12 (1) as those definitions and those in section 12 (2) enables one to do, what is, for immediate purposes, perhaps the widest likely description of the type of body to which section 12 applies is that it applies to any body that can confer an enrolment, recognition or approval which is needed for or facilitates engagement in a particular vocation or occupation.

14. The Labour Party's appeal raises questions in relation to section 12 similar, but not identical, to those raised in Sawyer -v- Ahsan [2000] ICR 1 EAT. Mr Sawyer, who was then the General Secretary of the Labour Party, was sued and appealed just as does Mrs McDonagh in the case at hand. Mr Ahsan, the applicant in that case, was a member of the Labour Party and a person elected on the Labour ticket to membership of a Local Authority. He was then not re-adopted by the Labour Party as a candidate to stand as a Labour Candidate at the next local elections. He complained that he had been de-selected on racial grounds, contrary to sections 1 and 12 of the Race Relations Act. The Employment Tribunal held that it did have jurisdiction to hear his complaint under section 12 and the Employment Appeal Tribunal upheld that view. At the Appeal Tribunal both sides indicated that, whichever lost, the loser would wish to appeal and the winner would not oppose a grant of permission to appeal - see p. 19. However, the Labour Party, though granted leave to appeal, did not appeal. No-one has urged before us that Sawyer is wrong and it has not appeared to us to be obviously wrong. It would, in any event, be unhelpful to have conflicting decisions at this level. Argument has therefore proceeded before us on the basis that Sawyer is right (although in one respect Mr Cavanagh reserves for a higher Court an argument as to part of it). Sawyer includes a survey of a number of authorities in the area and we shall take that survey as read and adopt it as part of our own reasoning. There is, indeed, only one authority on this part of the case to which we have been referred but which was not referred to in Sawyer.
15. However, before we go further with Sawyer we must first notice an argument under Part III of the Act which Mr Cavanagh raises, which was not advanced in that case and, indeed, was not argued below in this one. Mr Epstein, recognising that the argument goes to jurisdiction and to the breadth of the meaning of section 12, both of those being issues which were contested below, does not seek to bar the argument on the ground that it was not taken below. The argument is this: that there is no need for section 12 to cover this case nor to stretch it to do so, nor are the complainants in this case left without remedy if section 12 does not cover them, as Mr Ali and Mr Sohal had (and may still have) a remedy under Part III, section 25, of the Act.
16. Part III of the Act is headed "Discrimination in other fields" (meaning other than "In the Employment Field" - the heading to Part II). When a claim is made that there has been discrimination which is unlawful under Part III of the Act then the claimant may bring civil proceedings as if in tort - section 57 (1) - in a designated County Court - section 57 (2). Injury to feelings may be included within that which is compensated - section 57 (4) - and proceedings may be launched within 6 months of the act complained of - section 68 (2) (a) - but that period may be extended if it just and equitable to do so in all the circumstances of the case - section 68 (6). It may even be, says Mr Cavanagh, that the Legal Aid which is not available in the Employment Tribunal would be available in the County Court, thus conferring an advantage on Mr Ali and Mr Sohal which they would be denied if section 12 applied. It would be odd, says Mr Cavanagh, if Parliament had provided two quite different modes of proceeding - section 12 and section 25 - to persons in the position of the Applicants in this case. The Parts of the Act, he says, are meant to be mutually exclusive and the overwhelming probability is, only one of them being thus intended, that what was intended was the clear mechanism offered by section 25. This is a ground, he argues, for a conclusion that the complainants' cases do not fall within section 12.
17. Section 25 provides, under the heading "Discrimination: associations not within section 11", as follows:-

"(1) This section applies to any association of persons (however described, whether corporate or unincorporate, and whether or not its activities are carried on for profit) if -

(a) It has 25 or more members;

(b) Admission to membership is regulated by its constitution and is so conducted that the members do not constitute a section of the public within the meaning of section 20 (1); and

(c) It is not an organisation to which section 11 applies.

(2) ...........

(3) It is unlawful for an association to which this section applies, in the case of a person who is a member .... to discriminate against him -

(a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(b) in the case of a member, by depriving him of membership, or varying the terms on which he is a member; or

(c) .... ; or

(d) in either case, by subjecting him to any other detriment."

If section 25 (1) fits the position of the Labour Party, we would accept that suspending Mr Ali and Mr Sohal "from office or representation of the Party" would fall within section 25 (3) (b) as a variation in the terms upon which they were members or, within (d), as their subjection to another detriment. Moreover, we accept that section 25 (1) (a) is satisfied and that admission to the Party is regulated by its constitution; Rule 2 (A) of the Party's Rules sets out conditions of membership which, at 2A.6, require, for a person's eligibility to be and remain a member, an acceptance (inter alia) of the principles and policy of the Party, some of which are set out in broad terms under its heading "Clause IV aims and values". We accept, too, that the Labour Party does not fall within section 11 of the Act, headed "Trade Unions etc.". The nub of the question as to the applicability of section 25 lies in this question; is it an association "So conducted that its members do not constitute a section of the public within the meaning of section 20 (1)"?

18. That language suggests that on turning to section 20 (1) one will find a meaning for the expression "a section of the public". Section 20 provides, under the heading of "Discrimination in provision of goods, facilities or services" the following:-

"1. It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use of those goods, facilities or services -

(a) by refusing or deliberately omitting to provide him with any of them; or

(b) by refusing or deliberately omitting to provide him with the goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section."

Section 20 (2) gives a series of examples of the sorts of facilities and services intended to fall within section 20 (1). It will have been noticed that section 20 contains no definition of "a section of the public". However, a reference to the precursor of section 20 and to cases under it provides some help.

19. That precursor, Section 2 of the Race Relations Act 1968, made provision against discrimination in the provision of goods, facilities or services very much as is now found in section 20 of the 1976 Act and section 2 had within it reference to "the public or a section of the public" much as is found in section 20. In Race Relations Board -v- Charter [1973] A.C. 868 the House of Lords was concerned with a Local Conservative Club which provided various services and facilities to its members - see p. 870 f-g, p. 885 e. A man of Indian birth was declined membership, reference having been made to his colour and to its relevance during consideration of his application for membership. The Race Relations Board took up the man's case. The House of Lords held by a majority that the Club did not provide its facilities or services "to the public or a section of the public". That phrase was one of limitation - Lord Reid at p. 885 - and where there was a genuine system of personal selection of members, where entry could not said to be a mere formality, the result would be that a club consisted neither of the public nor of a section of the public - per Lord Reid at p. 887; Lord Hodson at p. 897. The phrase, said Lord Simon of Glaisdale, referred to persons aggregated in one or more of their public rôles; the dividing line, taking persons out of the meaning of "a section of the public", was the personal selection of members with a view to their common acceptability - p. 903. Was there a genuine screening as a pledge of general acceptability to fellow members? - p. 903. To take the club out of its consisting of a section of the public, acceptance of a member had to be on a basis more selective than a mere "rubber stamp" process - per Lord Cross at p. 909. As the Club in question was found on the facts genuinely to select its members, the club was held not consist of the public or of a section of the public.
20. Charter supra was followed shortly afterwards by the House of Lords in Dockers Labour Club and Institute Ltd. -v- Race Relations Board [1976] A.C. 285, a case again dealing with a club that provided goods or services such as, for example, drinks - p. 290 f-g.
21. The decision in Dockers Labour Club in the House of Lords was published on the 16th October 1974. Both it and the Charter case were mentioned in debate in both Houses of Parliament during passage of the Race Relations Bill from March onwards in 1976.
22. In the context of that legislative history meaning can be given to the otherwise strange phrase in section 25 referring to an association "so conducted that the members do not constitute a section of the public within the meaning of section 20 (1)". The history we have mentioned firmly suggests that the section and those words were added so that an association or club which did have a genuine screening for selection as described in the Charter case was nonetheless to be caught by the Act and that discrimination by it falling within section 25 (2) or (3) would thus be actionable. The phrase "So conducted that the members do not constitute a section of the public" was, albeit couched in negative form, a provision intended to include within the ambit of the Act the kinds of association (which for brevity's sake we will call "genuine selecting clubs") which, even if providing goods, services or facilities to their members, had hitherto been excluded.
23. However, it cannot be said of the Labour Party that it is a genuine selecting club; whilst the Employment Tribunal does not appear to have had direct evidence on the point, no-one pretends that prospective members are truly screened or that any rigorous process is applied to existing members to ensure that they continue to uphold this policy or that principle. We have no reason to believe that membership depends on anything more selective than a willingness to join and to pay the subscription. Joining or remaining as members is, we shall take it, a "rubber stamp" of a process. Members of the Labour Party therefore do consist of a section of the public; there is no screening sufficient to take them out of that description. On that basis section 25 (1) (b) is not satisfied and hence section 25 is not applicable to the Labour Party. We thus do not accept Mr Cavanagh's argument that section 25 was open to Mr Ali and Mr Sohal or that section 12 has to be construed against a background in which section 25 offers either alternative relief to them or exclusive relief to them.
24. Because of the reference in section 25 to a section of the public "within the meaning of section 20 (1)" yet where section 20 (1) provides no such meaning, we raised during the hearing the question of whether it would be appropriate for one or other of the parties to conduct what one might call a Pepper -v- Hart search. After the hearing a good deal of Parliamentary material was supplied to us which neither side has argued should be left outside our gaze. We shall therefore make brief reference to some statements made on the promoter's side (the Government side) during the passage of the Race Relations Bill.
25. There is little doubt that Parliament considered that it had made provision such that (save for small clubs having 25 members or fewer and hence such as were excluded by the provisions of section 25 (1) (a)) all clubs or associations falling within Part III of the Act ("Discrimination in other Fields") would either fall within section 20 (if making provision to the public or to a section of it) or within section 25 (if a genuine selecting club and hence not providing to the public or a section of the public). There are several observations on the Government's side in debate in both Houses of Parliament that show an intent to cover clubs "of every kind" - see the Minister of State at the Home Office in the Commons on the 4^th March 1976; in the House of Lords on the 2nd July 1976 and ("to all clubs except those having fewer than 25 members, of whatever kind") on the 29th September 1976 in the House of Commons, on the 27th October 1976 by the Secretary of State for the Home Department and again in the House of Lords on the 15th November 1976. What, it seems to us, was overlooked was that one could have a club or association which had more than 25 members yet which was excluded from section 25 because it was not a genuine selecting club and which did not fall within section 20 because it did not provide goods, facilities or services. The Labour Party, as it seems to us, is such an association; not being a genuine selecting club, it does not fall within section 25; it has very many members and yet no-one has suggested that it falls within section 20 by reason of providing goods, facilities or services and no such provision was found as a fact in this case.
26. An argument is possible, by reference to the Sex Discrimination Act 1975, that Parliament had contemplated that a political party would or might be regarded as providing goods, facilities or services to its members, they being a section of the public. Section 29 (1) of the Sex Discrimination Act begins, exactly as does section 20 of the Race Relations Act, with a reference to goods, facilities or services but section 33 (2) of the Sex Discrimination Act then provides that nothing in section 29 (1) shall be construed as "affecting any special provision for persons of one sex only in the constitution, organisation or administration" of a political party falling within section 33 (1). Section 33 would be completely otiose if no political party could ever be regarded as providing goods, facilities or services. However, this argument does not assist us as it is plain that a political party (especially, perhaps, a local branch of one) might provide goods, facilities or services; it is easy enough to imagine a political party which has or has the use of premises to be used by its members for meetings or talks, or as a "surgery" or "clinic" for their problems, or which has a reading room or a lending library open to members or even a periodical circulated to members. It might even be that if the case at hand had been examined relative to the Slough local branch of the Labour Party rather than in relation to the Labour Party as a whole that it would have been seen that section 20 of the Race Relations Act did apply to it by reason of some such provision by the local branch, assuming the local branch not be a genuine selecting club.
27. There is a curiosity in that a genuine selecting club will fall within section 25 despite not providing goods, facilities or services to the public or to a section of the public whereas an "unscreened" association or club cannot fall within section 20 unless it makes some such provision. The outcome - looking just to Part III of the Act - is that an association such as the Labour Party which, for all its size and significance, makes no such provision, ends up -if one is still looking only at Part III of the Act - as less susceptible to the Act than, after the introduction of section 25, are relatively minor Conservative and Labour clubs such as were dealt with in the Charter and Dockers Labour Club and Institute Ltd. cases supra. Moreover, the Labour Party would remain less susceptible than those minor associations even were the latter to cease to provide goods, services or facilities to their members. Whether this was truly intended is unclear but it is, if anything, a further argument for a broad meaning to be given to whatever Parts of the Act outside Part III might serve to catch any large associations, given Parliament's intent to catch clubs and associations "of every kind". It is, in other words, a further argument for a broad meaning to be given to Part II of the Act and thus, within Part II, to section 12.
28. Moving on to Part II of the Act, Mr Cavanagh argues that if section 12 had been intended to cover ordinary membership or the ordinary incidents of membership of an "unscreened" association such as a political party it would have included language akin to that used in relation to membership of Trade Unions and similar bodies in section 11. We see the force of that but the fact that Parliament could have dealt with "unscreened" political parties by a means other than section 12 is not a convincing argument that section 12 has failed adequately to deal with them.
29. We therefore approach the construction of section 12 on the basis that either the Labour Party falls within its terms or that discrimination on racial grounds by the Labour Party in relation, for example, to withdrawing membership from a member or varying the terms on which he holds it, is without any remedy whatsoever. Moreover, lest it be relevant, we are unconvinced that Parts II and III of the 1976 Act are manifestly and in all cases intended to be mutually exclusive; if that was so the very particular provisions of section 12 (3), section 23 and section 25 (1) (c), each being a particular reference in one Part showing it not to apply to another Part, would not have been necessary.
30. With that background we return to the Sawyer case. Accepting Sawyer to be right, we proceed on the basis that the Labour Party is a "body" and that representation of the Labour Party as a Councillor on a Local Authority amounts to engagement - see Sawyer p.9, paragraph 18 - in a particular occupation (that last being a word which does not necessarily require that it should be either full-time or remunerated - Sawyer pps. 7-8, paragraphs 12 and 13). A party can, at several stages in the process from mere membership of the Labour Party to that member standing on the Labour Party ticket at the local election, confer an approval or recognition which is needed for engagement in that particular occupation - Sawyer paragraphs 8 and 9 and paragraphs 14-17. The process of the non-selection or de-selection of Mr Ahsan that was in issue in Sawyer was obviously a step more proximate to his engagement in the occupation of being a Labour Councillor than is the nomination of, or inability to nominate, Mr Ali or Mr Sohal to the pool from which prospective candidates were to be selected in our case but we have not been convinced that there is any difference of principle between the two positions. Nor, for reasons given in Sawyer at paragraph 19, do we find that the heading of Part II of the Act - "Discrimination in the Employment Field" - is sufficient to preclude the applicability of section 12 to the Labour Party in its relationship with such of its members as intend to take part in Local Government as Councillors. We note, too, the argument, in response to a view that Labour Party approval does not alone suffice for a person to engage in the occupation of being a Councillor or of being a Labour Councillor but that that requires a sufficient endorsement by the electorate, that section 12 does not require the approval in question of itself to be sufficient - see Sawyer at paragraphs 22 and 24. Subject to one authority we thus conclude that the Labour Party, in relation to some of its functions and in relation to some its members and their rights as such, is a body which can make a conferral which falls within the opening words of section 12.
31. We mentioned earlier that there was one authority cited to us which had not been dealt with in Sawyer. We now turn to it. It is McLoughlin -v- Queens University of Belfast [1995] NICA 82 a case under the Fair Employment (Northern Ireland) Acts 1976 and 1989. The relevant words of the 1976 Act in that case provided that:-

"It shall be unlawful for a person who has power to confer on another a qualification which is needed for or facilitates his engagement in employment in any capacity, or in a particular employment or occupation, ..... to discriminate against him - ..... by refusing ..... to confer that qualification on him on his application. ...."

The word "qualification" was enlarged there as it is in the Race Relations Act. The complainant there had applied to the University for a place on its Post-Graduate Certificate of Education Course. He claimed that he had been refused entry into that course on the grounds of his religious belief or political opinions. The Northern Ireland Court of Appeal held:-

"The words "registration" and "enrolment" refer in our view to variants of conferment of qualifications upon persons who thereby achieve some status in relation to their work or the work which they proposed to do (see the judgment of this Court given by Murray L.J. in Department of the Environment for Northern Ireland -v- Bone (15th September 1993, unreported) p. 5-6). The registration of doctors or architects and the enrolment of solicitors are examples of this process. It would not accord with the ordinary meaning of language to talk of "conferring" registration or enrolment if the words were used in the sense of admission to a certificate course. Moreover, if one did use the words in this sense, it would require them to be used with double connotations: they would have to mean both the process of acceptance for entry to the courses which lead to qualifications of all kinds and also the end result of some of those courses, when the students are registered or enrolled on their completion. The strained nature of such an interpretation is a further pointer away from accepting that this meaning was intended by Parliament. We also considered that there is force in the contrast between section 17 and section 23: if Parliament had wished the arrangements for determining who should be accepted on to the course to be included, it would have been very simple so to provide. The fact that it did not do so points to the conclusion that they were not to be included in the prohibition."

However, we note that that reference to the achievement of some "status" has since been indicated to be such as might require further argument or as being possibly distracting - see the later case of Kelly -v- Northern Ireland Housing Executive [1998] ICR 828 H.L. at 838 e and 847 c-d and see also Sawyer at paragraph 29. In Kelly the ratio was narrowed down to the very narrow form in which it is found at p. 838 f. The argument that it would have been simple for Parliament to prohibit discrimination in relation to the admission to a course and hence that its failure to do so pointed to the conclusion that such discrimination was not within the section was an argument which begged the question. It assumed that the formula used did not prohibit such discrimination. Moreover, whilst we see the force of the argument that the need for the words to refer both to the whole process and to the entry into that process may point away from that breadth having been intended, unless the words are capable of such a breadth one is left with the significant anomaly which was identified by Counsel for the complainant in McLoughlin at p. 87 where, as the Court records it, he argued that the breadth he was pressing for:-

"Was a necessary interpretation in order to prevent the occurrence of the anomaly which would exist if the body was forbidden to discriminate when it was conferring certificates at the completion of the course but could do so effectively by controlling its intake."

32. Equally anomalous would it be if at the several stages between the intake and the final conferring of certificates discrimination was not barred. It is notable in McLoughlin that that particular argument of Counsel was not dealt with and that that anomaly was left undiminished. As did the EAT in Sawyer, we fall back on the powerful dictum of Templeman L.J. in Savjani -v- Inland Revenue Commissioners [1981] Q.B. 458 at 466-467, namely that the Race Relations Act 1976 "Was brought in to remedy a very great evil. It is expressed in very wide terms, and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act".
33. If Mr Ali and Mr Sohal were indeed, as they claim, suspended from some incidents of membership of the Labour Party on racial grounds then that, as it seems to us, was no private slight nor some short-lived affront but an enduring suspension published to many, amongst whom (to judge from the membership of the National Executive Committee) were many of national importance. As was correspondingly the case in Sawyer, we would regard what is here alleged to have happened as well able to be "humiliatingly discriminatory" within Templeman L.J.'s dictum.
34. In the premises we do not regard McLoughlin (which in any event does not bind us) as requiring us to depart from the conclusion at which, that authority apart, we had arrived, namely that the Labour Party is a body which, in relation to some of its functions and in relation to some of its members and their rights as such, can make a conferral which falls within the opening words of section 12. The functions relevant to Mr Ali's and Mr Sohal's complaints are those of its functions which operate to permit or to bar a member's progression or possible progression from mere membership towards the occupation of being a Labour Councillor; we see the Labour Party as falling within section 12 in its exercise of such selection functions, which we shall next describe in more detail.
35. The evidence of the selection process that was given by Mr Gardner was not queried and included the following:-

"(i) Nomination

The Local Government Committee ("LGC") invites Branch parties and other affiliated organisations within a certain LGC area to nominate prospective candidates who must meet the requirements of eligibility contained in section 5A.3 (b) and (c). There is also provision to self-nominate.

(ii) The Panel of Candidates

Under Rule 5A.3 (d) there is a power of refusal of endorsement of any nomination given to the LGC "as it thinks fit". Thus, the LGC has the responsibility of drawing up a list or "panel" of suitably qualified and endorsed nominees from which individual members select their local Labour Party candidates. this process is referred to in Rule 5A.3 (f).

(iii) Selection eligible individual members in any given electoral area then select Local Government candidates from the panel of endorsed candidates. This process is referred to in Rule 5A.4."

Rule 5A.3 provides:-

"Nomination of panels of prospective Local Government candidates:

(a) Where invited by a Local Government Committee to submit names for inclusion in its panel of prospective candidates, a party branch ...... shall invite its eligible membership to nominate ....

(b) All nominees must be individual members of the party and have paid the membership contribution; in addition nominees shall have been individual members of the party for at least 12 months, except in exceptional circumstances .....

(c) ........

(d) Nominations shall be submitted to the appropriate local government party which shall have the power to refuse endorsement of any nomination as it thinks fit .... [a right of appeal is conferred]

(e) .......

(f) The list of members endorsed by the Local Government Committee shall from its panel of prospective candidates .....

(g) .........

5A.4 The selection of candidates shall be made form the panel of prospective candidates at special shortlisting and selection meetings ..........

..............."

The rules also provide:-

"5B.3 Qualification of nominees

(a) Each nominee must be an individual member of the Labour Party." ........

and (b) then repeats the need for an individual membership contribution and for 12 months' continuous national individual membership of the party at the date of nomination, the latter being a requirement which could be waived in exceptional circumstances.

We have earlier cited the disciplinary provisions of Rule 6A (see paragraph 5 above).

36. The qualification, approval or recognition to be considered as potentially falling within section 12 and which was denied to the Applicants was the qualification of being a full unsuspended Labour Party member, a qualification needed before one could be nominated to the pool from which selection of candidates was to be made. There was no question of that qualification being available to Mr Ali and Mr Sohal but only on terms. It was not as if anyone had said "Recant and behave yourselves and we'll let you once again have full membership rights" or anything such. So section 12 (1) (a) (see paragraph 13 above) is not satisfied. Next, assuming that Mr Ali's alleged October 1997 application, even though an expression of intent, did not comply with the requirements of a timely self-nomination, neither Mr Sohal nor Mr Ali had duly applied for entry into the pool from which candidates were to be selected for the May 1999 election. The invitation that went out to members inviting them to self-nominate was only after the suspension of Mr Sohal and Mr Ali and their next previous applications (whenever they had occurred) for full membership to the Labour Party had been granted. So section 12 (1) (b) is not satisfied. But some of the ordinary incidents of full membership were withdrawn or varied under the suspension. The Applicants could no longer nominate themselves or be nominated to the pool. So section 12 (1) (c) would appear to be satisfied if, but only if, one could say of the unvaried membership or of that incident of full membership which was so withdrawn that it was needed for engagement in a particular occupation (to use the widest of the alternative terms in section 12).
37. The Tribunal below had argument on section 12 (a), (b) and (c) before them. They recited Mr Restrick's argument, as it then was, as follows:-

"The next matter which falls for consideration is whether the Respondent's admitted suspension of the Applicants falls within sub-paragraphs (a), (b) and/or (c) of sub-section 12 (1) RRA. Mr Restrick submitted as neither Applicant had been given any authorisation or qualification, it was impossible to say that any terms had been imposed within the definition of sub-paragraph (a). Furthermore, as the Applicants conceded, they had not submitted any formal application to be nominated as candidates there could be no question of any such application being refused or ignored under provisions of sub-paragraph (b). For the same reasons sub-paragraph (c) is inapplicable, as it is not possible to withdraw or vary an authorisation which has newer been granted in the first place."

The Tribunal rejected that argument in the very next paragraph. They said:-

"We reject the thrust of these submissions for these reasons. Although in Ahsan it was a refusal to re-select which was construed by the Employment Appeal Tribunal as falling within section 12 RRA, we see no reason why the authorisation or qualification, which the Labour Party is able to confer, should be limited to such precise circumstances. Chapter 5B.3 of the Rules (of the Labour Party) sets out the qualifications required for individuals who wished to be nominated for Local Government Office. Essentially that, there are three principal requirements namely

(a) Membership of the Labour Party.

(b) Payment of Party membership and subscriptions.

(c) Membership for a continuous period of 12 months (other than in exceptional circumstances).

Once an individual has fulfilled those requirements the Labour Party has effectively conferred upon that third person "an authorisation or qualification which is needed for" nomination as a candidate for Local Government Office. Furthermore, the decision to suspend both Applicants from seeking political office - which as previously indicated in this decision was not an automatic consequence of the disciplinary investigation - withdrew from each of them (or at least varied until the suspension had been lifted) the authorisation or qualification which had been conferred upon each of them by virtue of their length of membership with the Labour Party and their payment of the relevant subscription. Consequently denying both Applicants the opportunity to be nominated for office constituted a potential breach of section 12 (1) (c) RRA. The fact that neither Applicant completed the official application form is in our view irrelevant, since for the reasons expressed, each Applicant already had the requisite authorisation or qualification to be nominated for Local Government Office having fulfilled the requirements set out in Chapter 5B.3 of the Rules."

The Employment Tribunal then cited a passage from the Appeal Tribunal's judgment in Sawyer where the Appeal Tribunal said:-

"Accordingly, we should in our view, approach the construction of the detailed domestic legislation with a disposition not only, if we encounter ambiguity, that it should, if possible, be resolved in a way that conduces (as may be appropriate) to the actionability ....... of racial discrimination but also that we should not be too readily receptive of any argument that there is no ambiguity if that leads to "something which is humiliatingly discriminatory in racial matters" falling outside the Act."

The Employment Tribunal, having concluded they did have jurisdiction to hear the two complaints then moved on, in their final paragraph, in a passage replete, if we may say so, with good sense, to conclude as follows:-

"We do not hesitate to express a view that we are happy that our deliberations have led us to such a conclusion. On the basis of Mr Restrick's submissions, a political party could (theoretically) perpetrate deliberate and malicious racial discrimination against one of its members seeking nomination for selection as a political candidate leaving that member with no recourse under RRA. Adopting the dictum of Lord Templeman and the section of the judgment of [Sawyer] to which we have referred, such a conclusion would not only be morally repugnant but also something which Parliament could not possibly have intended."

38. We have failed to detect error of law in the Employment Tribunal's extended reasons. We make three points. Firstly, we would not think it right to allow the conferral of such qualification, recognition or approval as section 12 is concerned with to be capable of being sub-divided in such a way that discrimination in relation only to a preliminary part or stage should be beyond the reach of the Act whereas the whole or final entity should be within it. It will often be that discrimination at a preliminary stage or as to a part only would be as hurtful and as effective a bar to an applicant as would be discrimination in the qualification as a whole and the possibility of such sub-division - the anomaly identified by Counsel in McLoughlin supra, - if unchecked, would represent little short of a repeal of section 12. For example, if no-one could be called to the Bar by an Inn of Court unless he had become and remained a member of the Inn, had eaten dinners and had passed exams, a student would be no more affronted and harmed by his Inn's refusal, on racial grounds, to call him to the Bar (surely an act falling within section 12) than he would have been by its refusal, on like grounds, to accept him as a member or to permit him to dine or sit exams. We thus resist the argument that the ability of a member of the Labour Party to be nominated, or to nominate himself, to the pool from which Labour Local Government candidates would be selected falls short of the sort of full qualification which section 12 contemplates. It is an essential preliminary to that full qualification and we fail to see why discrimination as to an essential preliminary part is any less covered by section 12 than is discrimination as to the whole or final qualification, recognition or approval.
39. Secondly, we do not shrink from holding that the mere conferral of membership of the Labour Party (and thus of its concomitant rights) is of itself, certainly to a person who intends to be a Labour Councillor, a conferral that falls within section 12 (1) in much the same way as membership of an Inn of Court is such a conferral relative to a person intending to become a barrister. Mr Cavanagh had real difficulty with the question of whether a refusal, upon racial grounds, of membership of an Inn of Court would be caught by section 12.
40. Thirdly, we are not disposed to distinguish between acts or omissions of the National Executive Committee (or those of the Labour Party) which are allegedly merely "administrative" and its other ones; an argument in the Appellant's skeleton to such effect was not pressed orally and the Employment Tribunal had in any event well answered it by referring to its amounting to a license to discriminate which would fly in the face of the dictum in Savjani supra.
41. We thus dismiss the appeal. As we recognise important principles to be involved we would be willing, if requested, to give permission to appeal to the Court of Appeal. We have mentioned that there was one respect in which Mr Cavanagh reserved the right to argue in a higher Court that a part of the reasoning in Sawyer was wrong; we thus note that he reserves the right to argue that, contrary to Sawyer, being a Labour Councillor cannot amount to engagement in a particular profession or occupation for the purposes of section 12.
42. Finally it needs to be remembered that as yet no facts have been found. All is in the realm of allegation. There has so far been no investigation at all into whether there was in fact any material thing done or not done on racial grounds by the Labour Party.