IN RE WHEELER AND OTHERS (ENGLAND)
Lord Roskill
Lord Bridge of Harwich
Lord Brightman
Lord Templeman
Lord Griffiths
LORD ROSKILL
My Lords,
This is an appeal by members of the Leicester Football Club
(“the club”) suing on their own behalf and on behalf of all other
members of the club. In reality it is an appeal by the club and I
shall so treat it. It is brought by leave of the Court of Appeal
(Ackner and Browne-Wilkinson L.33. and Sir George Waller) [1985]
2 All E.R. 151. That court on 14 March 1985, by a majority,
Browne-Wilkinson L.J. dissenting, dismissed an appeal by the club
against the refusal of Forbes 3. on 27 September 1984 to grant
the club judicial review of a decision by the respondents, Leicester
City Council (“the council”), on 21 August 1984. That decision is
recorded in minute 46 of the council’s Policy and Resources
Committee in the following terms:
“RESOLVED; that the Leicester Football Club be suspended
from using the Welford Road recreation ground for a period
of 12 months and that the situation be reviewed at the end
of that period in the light of the club’s attitude to sporting
links with South Africa.”
As a result of the passing of that resolution, the club
applied for a judicial review of the decision for the purpose of
quashing it, for a declaration that it was of no effect and for an
injunction preventing (inter alia) the implementation of the
resolution. On 10 September 1984 Otton J. gave the club leave to
move for judicial review and, pending the hearing of the motion,
granted the injunction sought. As already stated, Forbes 3.
refused the relief sought and since the appeal to the Court of
Appeal failed, the club has remained banned from the use of the
Welford Road recreation ground save for training purposes, this
last by virtue of a concession later made by the council in
circumstances to which I will refer in due course.
My Lords, the background to this unfortunate dispute
between a rugby football club of renown, now over a century old,
and the council is fully stated in the judgments below. I
gratefully adopt those statements for in truth the relevant facts
are not in dispute. But some reference to the facts is essential
for the proper understanding of the issues involved.
The story starts with the announcement by the Rugby
Football Union (“R.F.U.”) on 30 March 1984 that they had accepted
and invitation to take a touring side to South Africa. On 19 April
1984, the membership of this side was announced. The
membership included three well known members of the club. All
– 1 –
three were regular England players. It should be mentioned that
the club does not have any direct representation on the R.F.U. It
has one representative on the Leicestershire Rugby Union and the
latter body has one representative on the main committee of the
R.F.U.
On 11 April 1984 Mr. John Allen, the secretary and a
former captain of the club, was telephoned by the assistant chief
executive of the council and asked if representatives of the club
would attend a meeting with Mr. Soulsby, the leader of the council
in connection with the projected tour and the participation in it of
the club’s three members.
That meeting took place on 12 April 1984. Mr. Soulsby
read out four questions. These four question had been recorded in
writing but no copies were given to the club representatives at the
meeting. Since I attach importance to the content of these four
questions, both individually and collectively, I record them in full:
“1. Does the Leicester Football Club support the
Government opposition to the tour?
“2. Does the Leicester Football Club agree that the tour
is an insult to the large proportion of the Leicester
population?
“3. Will the Leicester Football Club press the Rugby
Football Union to call off the tour?
“4. Will the Leicester Football Club press the players to
pull out of the tour?”
Mr. Allen told Mr. Soulsby he would take the questions back to
the committee of the club and would return for a further meeting
on 8 May 1984. At that latter meeting it was made plain by Mr.
Soulsby – Mr. Allen’s affidavit was not contradicted on this matter
– that “the club’s response would only be acceptable if in effect
all four questions were answered in the affirmative.”
On 14 May 1984 Mr. Allen again wrote to Mr. Soulsby and
handed him a written statement of the club’s response. I set this
out in full:
“Leicester Football Club have always enjoyed cordial
relations with Leicester City Council on a strictly non-
political basis and seek to continue that relationship. The
club join with the council in condemning apartheid but
recognise that there are differences of opinion over the way
in which the barriers of apartheid can be broken down. The
government have not declared sporting contacts illegal or
even applied sanctions against those involved in tours. Their
opposition is on an advisory basis, similar to the advice to
athletes at the time of the Moscow Olympics, leaving the
decision to the individuals concerned. The decision by the
Rugby Football Union to approve the tour was taken by a
large majority of their committee, but the club had
forwarded to the Leicestershire Rugby Union, the club’s
constituent body, the anti-apartheid case against the tour,
which merits serious consideration. Rugby Union players as
– 2 –
amateur sportsmen have individual choice as to when and
where they play, subject only to the constraints of R.F.U.
rules and club loyalty. However, the club, having read the
memorandum to the R.F.U., prepared by the anti-apartheid
movement, and accepting the serious nature of its contents,
have supplied copies to the tour players and asked them to
seriously consider the contents before finally reaching a
decision whether to tour. The club are and always have
been multi-racial and will continue that principle for the
benefit of Leicester and rugby football.”
Mr. Soulsby said he noted the club’s response but added that
he did not think “it would have gone far enough to satisfy the
membership of the controlling Labour group on the council.”
This meeting was followed by various statements through the
media and elsewhere that the council were considering sanctions
against the club for what the council regarded as the club’s failure
to discourage its members from taking part in the South African
tour.
No solution was found during the ensuing weeks. On 21
August 1984, the resolution banning the club from the use of the
Welford Road recreation ground was passed in the terms which I
have already mentioned. This resolution was subsequently notified
to the club. Mr. Small, the club’s solicitor and also one of its
members, wrote on 30 August 1984 to ask whether the ban
included a ban on using the recreation ground for training. A
brief reply, dated 31 August 1984, indicated that the ban was
intended to be total. The letter, over the signature of the
assistant chief executive, included these sentences:
“It was and is the council’s intention to prevent members of
the Tigers training on the recreation ground in the evenings
as well as banning the use of the rugby pitch for club
matches. For the ban on training the council would seek to
rely on Byelaw 16 of the Parks Byelaws and would maintain
that the use of the recreation ground by the Tigers would
per se interfere with other use of the recreation ground.”
Mr. Small, whose evidence on this matter was not contradicted,
was subsequently told by Mr. Stephenson that if the club tried to
train on the ground the floodlighting would be disconnected and
this would be effective to prevent training.
By the time the matter was before Forbes 3. it was
recognised that this reliance on Byelaw 16 was indefensible. I say
no more about it save to express regret that the contention should
ever have been advanced. Any defence of the council’s action
based on the Race Relations Act 1976, however well founded,
could not possibly have extended to justify a ban on training, as
Forbes 3. pointed out.
The reasons for the imposition of the ban are clearly set
out in paragraph 13 of Mr. Soulsby’s affidavit. I quote that
paragraph in full:
“I refute any suggestion that the purported sanction against
the club was imposed in response to the actions of their
– 3 –
players. I wish to make it clear that the action taken by
the council was in response to the attitude taken by the
club in failing to condemn the tour and to discourage its
members from playing. The council has taken its steps
therefore because of what the club did or did not do. It
was always recognised that the club were not in the position
of employers and could not instruct their players. However,
the club is, as the applicants’ evidence shows, a premier
rugby football club and an influential member of the Rugby
Football Union. At no time was the club asked to do
anything by the city council which was beyond their powers
to do. The steps taken by the city council have not been
taken in order to penalise the club for having members who
went to South Africa, still less, to penalise the club in
order to penalise the players.”
It is important to emphasise that there was nothing illegal
in the action of the three members in joining the tour. The
Government policy recorded in the well known Gleneagles
agreement has never been given the force of law at the instance
of any Government, whatever its political complexion, and a person
who acts otherwise than in accordance with the principles of that
agreement, commits no offence even though he may by his action
earn the moral disapprobation of large numbers of his fellow
citizens. That the club condemns apartheid, as does the council,
admits of no doubt. But the council’s actions against the club
were not taken, as already pointed out, because the club took no
action against its three members. They were taken, according to Mr.
Soulsby, because the club failed to condemn the tour and to
discourage its members from playing. The same point was put
more succinctly by Mr. Sullivan Q.C., who appeared for the council
– “The club failed to align themselves whole-heartedly with the
council on a controversial issue.” The club did not condemn the
tour. They did not give specific affirmative answers to the first
two questions. Thus, so the argument ran, the council,
legitimately bitterly hostile to the policy of apartheid, were
justified in exercising their statutory discretion to determine by
whom the recreation ground should be used so as to exclude those,
such as the club, who would not support the council’s policy on
the council’s terms. The club had, however, circulated to those
involved the powerfully reasoned and impressive memorandum
which had been sent to the R.F.U. on 12 March 1984 by the anti-
apartheid movement. Of the club’s own opposition to apartheid as
expressed in its memorandum which was given to Mr. Soulsby,
there is no doubt. But the club recognised that those views, like
those of the council, however passionately held by some, were by
no means universally held, especially by those who sincerely
believed that the evils of apartheid were enhanced rather than
diminished by a total prohibition of all sporting links with South
Africa.
The council’s main defence rested on section 71 of the Race
Relations Act 1976. That section appears as the first section in
Part X of the Act under the cross-heading “supplemental.” For
ease of reference I will set out the section in full:
“71. Without prejudice to their obligation to comply with
any other provision of this Act, it shall be the duty of
every local authority to make appropriate arrangements with
– 4 –
a view to securing that their various functions are carried
out with due regard to the need – (a) to eliminate unlawful
racial discrimination; and (b) to promote equality of
opportunity, and good relations, between persons of different
racial groups.”
My Lords, it was strenuously argued on behalf of the club
that this section should be given what was called a “narrow”
construction. It was suggested that the section was only
concerned with the actions of the council as regards its own
internal behaviour and was what was described as “inward looking.”
The section had no relevance to the general exercise by the
council or indeed of any local authority of their statutory
functions, as for example in relation to the control of open spaces
or in determining who should be entitled to use a recreation
ground and on what terms. It was said that the section was
expressed in terms of a “duty.” But it did not impose any duty so
as to compel the exercise by a local authority of other statutory
functions in order to achieve the objectives of the Act of 1976.
My Lords, in respectful agreement with both courts below, I
unhesitatingly reject this argument. I think the whole purpose of
this section is to see that in relation to matters other than those
specifically dealt with, for example, in Part II, employment, and in
Part HI, education, local authorities must in relation to “their
various functions” make “appropriate arrangements” to secure that
those functions are carried out “with due regard to the need”
mentioned in the section.
It follows that I do not doubt that the council were fully
entitled in exercising their statutory discretion under, for example,
the Open Spaces Act 1906 and the various Public Health Acts,
which are all referred to in the judgments below, to pay regard to
what they thought was in the best interests of race relations.
The only question is, therefore, whether the action of the
council of which the club complains is susceptible of attack by
way of judicial review. It was forcibly argued by Mr. Sullivan
Q.C. for the council, that once it was accepted, as I do accept,
that section 71 bears the construction for which the council
contended, the matter became one of political judgment only, and
that by interfering the courts would be trespassing across that line
which divides a proper exercise of a statutory discretion based on
a political judgment, in relation to which the courts must not and
will not interfere, from an improper exercise of such a discretion
in relation to which the courts will interfere.
My Lords, the House recently had to consider problems of
this nature in Council of Civil Service Unions v. Minister for the
Civil Service [1984] 3 WLR 1174. In his speech at p. 1196 of the
report, my noble and learned friend Lord Diplock classified three
already well established heads or sets of circumstances in which
the court will interfere. First, illegality, second, irrationality and
third, procedural impropriety. If I may be forgiven for referring
to my own speech in the case, a similar analysis appears on p.
1200 of the report. Those three heads are not exhaustive, and as
Lord Diplock pointed out, further grounds may hereafter require to
be added. Nor are they necessarily mutually exclusive.
– 5 –
To my mind the crucial question is whether the conduct of
the council in trying by their four questions, whether taken
individually or collectively, to force acceptance by the club of
their own policy (however proper that policy may be) on their own
terms, as for example, by forcing them to lend their considerable
prestige to a public condemnation of the tour, can be said either
to be so “unreasonable” as to give rise to “Wednesbury
unreasonableness” (Associated Provincial Picture Houses Ltd, v.
Wednesbury Corporation [1948] 1 KB 223) or to be so fundamental
a breach of the duty to act fairly which rests upon every local
authority in matters of this kind and thus justify interference by
the courts.
I do not for one moment doubt the great importance which
the council attach to the presence in their midst of a 25 per cent,
population of persons who are either Asian or of Afro-Caribbean
origin. Nor do I doubt for one moment the sincerity of the view
expressed in Mr. Soulsby’s affidavit regarding the need for the
council to distance itself from bodies who hold important positions
and who do not actively discourage sporting contacts with South
Africa. Persuasion, even powerful persuasion, is always a
permissible way of seeking to obtain an objective. But in a field
where other views can equally legitimately be held, persuasion,
however powerful, must not be allowed to cross that line where it
moves into the field of illegitimate pressure coupled with the
threat of sanctions. The four questions, coupled with the
insistence that only affirmative answers to all four would be
acceptable, are suggestive of more than powerful persuasion. The
second question is to my mind open to particular criticism. What,
in the context, is meant by “the club?” The committee? 90
playing members? 4,300 non-playing members? It by no means
follows that the committee would all have agreed on an
affirmative answer to the question and still less that a majority of
their members, playing or non-playing, would have done so. Nor
would any of these groups of members necessarily have known
whether “the large proportion,” whatever that phrase may mean in
the context, of the Leicester population would have regarded the
tour as “an insult” to them.
None of the learned judges in the courts below have felt
able to hold that the action of the club was unreasonable or
perverse in the Wednesbury sense. They do not appear to have
been invited to consider whether those actions, even if not
unreasonable on Wednesbury principles, were assailable on the
grounds of procedural impropriety or unfairness by the Council in
the manner in which, in the light of the facts which I have
outlined, they took their decision to suspend for 12 months the use
by the club of the Welford Road recreation ground.
I greatly hesitate to differ from four learned judges on the
Wednesbury issue but for myself I would have been disposed
respectfully to do this and to say that the actions of the Council
were unreasonable in the Wednesbury sense. But even if I am
wrong in this view, I am clearly of the opinion that the manner in
which the Council took that decision was in all the circumstances
unfair within the third of the principles stated in the case of
Council of Civil Service Unions v. Minister for the Civil Service
[1984] 3 WLR 1174. The Council formulated those four questions
in the manner of which I have spoken and indicated that only such
– 6 –
affirmative answers would be acceptable. They received reasoned
and reasonable answers which went a long way in support of the
policy which the Council had accepted and desired to see
accepted. The views expressed in these reasoned and reasonable
answers were lawful views and the views which, as the evidence
shows, many people sincerely hold and believe to be correct. If
the club had adopted a different and hostile attitude, different
considerations might well have arisen. But the club did not adopt
any such attitude.
In my view, therefore, this is a case in which the court
should interfere because of the unfair manner in which the Council
set about obtaining its objective. I would not, with profound
respect, rest my decision upon the somewhat wider ground which
appealed to Browne-Wilkinson L.J. in his dissenting judgment.
Since preparing this speech I have had the advantage of
reading in draft the speech of my noble and learned friend Lord
Templeman with which I find myself in complete agreement.
I would, therefore, allow the appeal and order certiorari to
issue to quash the decision of 21 August 1984, the terms of which
I have already set out. I do not think that the declaration or the
injunction sought is necessary at this juncture, but lest they
become so, I would remit the matter to the High Court with
liberty to the club to apply for such further relief as may be
thought necessary to protect their rights. The Council must pay
the costs in this House and both courts below.
LORD BRIDGE OF HARWICH
My Lords,
For the reasons given in the speeches of my noble and
learned friends, Lord Roskill and Lord Templeman, with which I
agree, I would allow this appeal.
LORD BRIGHTMAN
My Lords,
I agree that this appeal should be allowed for the reasons
given in the speeches of my noble and learned friends, Lord
Roskill and Lord Templeman.
– 7 –
LORD TEMPLEMAN
My Lords,
In my opinion the Leicester City Council were not entitled
to withdraw from the Leicester Football Club the facilities for
training and playing enjoyed by the club for many years on the
council’s recreation ground for one simple and good reason. The
club could not be punished because the club had done nothing
wrong.
The 1984 Rugby Tour of South Africa was organised by the
Rugby Football Union which invited individuals, including three
members of the club to join the tour. There were two views
about the tour amongst the opponents of apartheid. The view
taken by the council, a view which I share, was that the tour
would endorse the racist policies of the South African Government.
The opposite view was expressed by Mr. Dodge, who was one of
the three members of the club who participated in the tour and
who gave sworn evidence in these proceedings as follows:
“I personally deplore apartheid as being morally wrong. It is
nevertheless my genuine belief that maintaining sporting
links with South Africa does help break down the evil social
barriers of apartheid, a personal belief which has been
strengthened by observing in 1984 the improvement since
1980.”
The council agree that this belief was sincerely held not
only by Mr. Dodge but by other opponents of apartheid. The
Government had subscribed to the Gleneagles agreement but did
not take steps to ban the tour, leaving the decision to each
individual invited to take part. The club does not practice racial
discrimination, does not support apartheid, has not been guilty of
any infringement of the Race Relations Act 1976, did not support
the decision of the three members to join the tour and sought to
discourage them from joining the tour by sending them copies of
the reasoned memorandum published by the opponents of the tour.
The council does not contend that the club should have threatened
or punished the three club members who participated in the tour
or that the club could properly have done so. Nevertheless, the
club has been punished by the council according Mr. Soulsby for
“failing to condemn the tour and to discourage its members from
playing.” My Lords, the laws of this country are not like the laws
of Nazi Germany. A private individual or a private organisation
cannot be obliged to display zeal in the pursuit of an object
sought by a public authority and cannot be obliged to publish views
dictated by a public authority.
The club having committed no wrong, the council could not
use their statutory powers in the management of their property or
any other statutory powers in order to punish the club. There is
no doubt that the council intended to punish and have punished the
club. When the club were presented by the council with four
questions it was made clear that the club’s response would only be
acceptable if, in effect, all four questions were answered in the
affirmative. When the club committee made their dignified and
responsible response to these questions, a response which the
council find unsatisfactory to the council, the council commissioned
– 8 –
a report on possible sanctions that might be taken against the
club. That report suggested that delaying tactics could be used to
hold up the grant of a lease then being negotiated by the club. It
suggested that land could be excluded from the new lease as it
was “thought that this could embarrass the club because it had
apparently granted sub-leases …” It was suggested that the
council’s consent, which had already been given for advertisements
by the club’s sponsors, could be withdrawn although according to
the report “the actual effect of this measure on the club is
difficult to assess.” It was suggested that “a further course is to
insist upon strict observance of the tenant’s covenants in the
lease. However, the City Estate’s Surveyor, having inspected the
premises, is of the opinion that the tenant’s convenants are all
being complied with.” Finally, it was suggested that “the council
could terminate the club’s use of the recreation ground.” This
might cause some financial loss to the council and might “form
the basis of a legal challenge to the council’s decision. The club
may contend that the council has taken an unreasonable action
against the club in response to personal decisions of members of
its team over which it had no control.” Notwithstanding this
warning the council accepted the last suggestion and terminated
the club’s use of the recreation ground. In my opinion, this use
by the council of its statutory powers was a misuse of power. The
council could not properly seek to use its statutory powers of
management or any other statutory powers for the purposes of
punishing the club when the club had done no wrong.
In Congreve v. Home Office [1976] 1 Q.B. 629, the Home
Secretary had a statutory power to revoke television licences. In
exercise of that statutory power he revoked the television licences
of individuals who had lawfully surrendered an existing licence and
taken out a new licence before an increase in the licence fee was
due to take effect. Lord Denning M.R. said at p. 651:
“If the licence is to be revoked – and his money forfeited
– the Minister would have to give good reasons to justify it.
Of course, if the licensee had done anything wrong – if he
had given a cheque for £12 which was dishonoured, or if he
had broken the conditions of the licence – the Minister
could revoke it. But when the licensee has done nothing
wrong at all, I do not think the Minister can lawfully revoke
the licence, at any rate, not without offering him his money
back, and not even then except for good cause. If he
should revoke it without giving reasons, or for no good
reason, the courts can set aside his revocation and restore
the licence. It would be a misuse of the power conferred
on him by Parliament: and these courts have the authority –
and, I would add, the duty – to correct a misuse of power
by a Minister or his department, no matter how much he
may resent it or warn us of the consequences if we do.”
Similar considerations apply, in my opinion, to the present case.
Of course this does not mean that the council is bound to allow
its property to be used by a racist organisation or by any
organisation which, by its actions or its words, infringes the letter
or the spirit of the Race Relations Act 1976. But the attitude of
the club and of the Committee of the club was a perfectly proper
attitude, caught as they were in a political controversy which was
not of their making.
– 9 –
For these reasons and the reasons given by my noble and
learned friend Lord Roskill, I would allow the appeal.
LORD GRIFFITHS
My Lords,
For the reasons given in the speeches of my noble and
learned friends, Lord Roskill and Lord Templeman, I would allow
this appeal.
Source: https://www.bailii.org/
