Law Report, Court of Appeal, 25 January 1978
The Times – 26 January 1978
Lewis v Heffer
McCormick v Heffer and Others
Lewis v Kitson and Others
Before Lord Denning, Master of the Rolls, Lord Justice Ormrod and Lord Justice Geoffrey Lane
The Labour Party's national executive committee, who have suspended the general committee, the executive committee and the officers of the Newham North-East constituency party and appointed a national party officer to run the constituency pending reorganisation, were held to have the powers so to act in order to end the chaos and provide stability.
In the existing circumstances, natural justice did not require the NEC to hold an inquiry before suspending the operative organs of the constituency party.
The Court of Appeal dismissed appeals by plaintiffs, Mr Julian Lewis, a member of the Newham North-East constituency party and Mr Paul McCormick, of Nuffield College, Oxford, a member of the Oxford Labour Party, against Mr Justice Milmo's orders on December 15 discharging injunctions granted ex parte on December 14 restraining the defendants, Mr Eric Heffer MP and Mr Alex Kitson, on behalf of the party's organisation committee; Miss Joan Lestor MP and five other named NEC members, and Mr Ron Hayward and three other named persons as representing the party's paid administrative servants. The discharged injunctions restrained the defendants from suspending or expelling the plaintiffs from the Labour Party or of depriving them of any of the rights of ordinary party members or of any party position to which they had been appointed or elected, whether temporarily or permanently.
Their Lordships also dismissed an appeal by Mr Lewis, on behalf of and as representing all Newham North-East members, against Mr Justice Michael Davies's dismissal of his application for an injunction restraining the defendants, Mr Alex Kitson and seven other NEC members and Mr Hayward, from in any way acting on or implementing the resolution to suspend the local party's general committee, executive committee and officers, and to authorise the national agent to conduct the day-to-day affairs of the constituency and to take the necessary steps to convene the next general meeting passed by the NEC on October 26, 1977.
Mr Gerald Godfrey QC and Mr Stuart McKinnon for Mr Lewis in the first appeal; Mr McCormick in person in the second appeal; Mr Lewis in person in the third appeal, with Mr Gerald Godfrey QC and Mr McKinnon on matters of law; Mr Conrad Dehn QC and Mr Christopher Carr for the defendants
The MASTER OF THE ROLLS said that there was a struggle for power in the Newham North-East Labour Party. Two factions were each striving for the mastery of the general meeting of the local party which had the management of party affairs. Whichever faction got mastery selected the parliamentary candidate, and would select a man of its way of thinking. Newham North-East was a safe Labour seat, so the faction which won would have a representative in Parliament for the propagation of its ideas, and if there were other MPs of like mind they would be able to put their objectives into operation. As the same thing might happen in other constituencies, the outcome might govern the standing of the Labour Party in Parliament and affect the policies of Parliament itself. Hence its importance.
A number of small Labour Party branches sent delegates to the general meeting; other organisations such as trade union branches also sent delegates. The rules prescribed the number of delegates; usually between 150 to 200 delegates were present, some favouring one faction and others the other. They were fairly evenly divided; and a switch-over of a few delegates might alter the whole pattern of voting. Each faction tried hard to increase its own delegates and reduce those of the other faction. That had been done to some extent by infiltration and by bringing in a newcomer to live in the constituency and join the local party. Such a newcomer might make all the difference to the voting.
In Newham North-East the struggle became acute when one faction sought to replace Mr Prentice, the sitting MP. It appeared to have control and was likely to get its own way.
The other faction then resorted to legal means to prevent it. The struggle became so intense that the Labour Party's NEC intervened, suspending all the local officers and committees and taking over control itself. One faction said that the suspension was invalid and beyond the NEC's power. Was that correct or not?
The two factions called each other pejorative names. One faction called itself "the moderates" and the other "the left-wingers". Those names were tendentious; his Lordship would call them by the names of the two young men who were prominent in them. They were Julian Lewis, educated at [a] Swansea grammar school and a philosophy graduate of Oxford, and Andrew Bevan, also educated at [that] Swansea grammar school and the Labour Party's national youth officer. Both went to live in Newham North-East a year or two ago; both joined the local party. Paul McCormick, a fellow of Nuffield College and a member of Oxford Labour Party, acted as constitutional adviser for the Lewis faction.
Each faction poured obloquy on the other. The Lewis faction reproached the Bevan faction with being extremist and said that:
"The constituency Labour Party had a strong contingent of extremists who have moved into the constituency over the last two or three years, infiltrated it, turned out its MP and driven out the old stalwarts from office, replacing them with Marxists".
The Bevan faction reproached the Lewis faction with being disrupters and said of them:
"Litigation had been used to gain political control. The issue of writs was destroying the party. The members responsible for the legal actions must be expelled".
Disputes on similar lines had been going on elsewhere causing much anxiety to the Labour Party. Mr Underhill, the national agent, said in an affidavit that:
"These facts do mean that a determined group acting in concert can win control of branches or even of a constituency Labour Party. I and all the other Labour Party officials share Mr Lewis's anxiety about it. I and they have made literally thousands of speeches about it all over the country urging local party officials and members to increase recruitment and to maintain a high membership so that the risk of a 'take-over' by an organised group is minimised. I am quite sure that it would be an instinctive and basic reaction of every NEC member and party official that such a takeover by any group – left or right – would be wholly undesirable. Such a thing has occurred from time to time, and when it has occurred the NEC have stopped the CLP functioning and have reorganised and reestablished the CLP".
His Lordship said that events in Newham North-East had to be described in terms of a war, for so it was. First there was battle over the local party's annual general meeting on February 23, 1977. It looked as if the Bevan faction would be in the majority, but on the day before the meeting the Lewis faction, claiming that it had not been properly convened, were granted an ex parte injunction by Mr Justice Stocker to stop the meeting. The injunction was upheld on April 6 by Mr Justice Kerr, who held that the annual meeting had not been properly convened. He also gave an interpretation of the rules about trade union delegates, which looked as though it might operate to the advantage of the Lewis faction in any future meeting.
It was then an open question whether there were any officers or committees in existence. The former ones had ceased and no new ones had been elected. To overcome the difficulty, the NEC on April 27 resolved to suspend the local committees and officers, if any, and authorised Mr Underhill to conduct party affairs and convene the annual meeting.
Although the Lewis faction regarded it as questionable whether the NEC had any right to do that, they co-operated with Mr Underhill in making arrangements for a new annual meeting, and eventually notices were sent out for it to be held on Wednesday, July 13.
The Lewis faction gathered their forces together for the meeting, taking full advantage of Mr Justice Kerr's ruling about trade union delegates. The Observer on July 10 suggested that they would probably win. But next day the national organisation committee resolved that no useful purpose would be served by holding the meeting and that the national agent should announce the decision to the meeting, which would then be closed.
The Lewis faction, getting wind of the resolution, obtained an ex parte injunction compelling Mr Underhill to hold the meeting. At the outset, Mr Bevan moved that it be adjourned. On a vote, the Lewis faction won 54 to 50. The officers and committee were elected, the Lewis faction winning all of them by a majority of about 10 votes.
But in August and September there was a split in the Lewis faction. Two important members ceased to support it. Mr Massey, the chairman, resigned, and Mr Hart, the secretary, refused to carry out instructions.
A change in control came about. The executive committee was still under the control of Mr Lewis, but the general committee was apparently open to question. That led to a serious dispute about a general meeting fixed for September 28. There were disturbances at the meeting and more writs.
On July 11 the organisation committee recommended that the NEC should set up inquiries with a view to resolving tthe dispute. After taking legal advice the NEC proposed that the annual party conference should make amendments to the rules for constituency parties; and there should be an inquiry into the Newham dispute.
The conference, early in October, amended clause IX (2)(3) of the rules by prescribing the method of calculating the number of delegates. The new method would take away the advantage which the Lewis faction had enjoyed under the ruling of Mr Justice Kerr. The conference also amended clause XIV by enabling the NEC to dispense with the normal procedure of nominating parliamentary candidates in the constituencies so as to override the local selection committee. Another clause was amended by providing that in case of the local party being dissolved its assets should be transferred to the national party.
Later the NEC, disturbed by a situation which had developed, passed a resolution which suspended the Newham officers and committees and entrusted the conduct of the party's day-to-day affairs to Mr Underhill. Effectively they took control out of the hands of the Lewis faction and, together with the change of rules, paved the way for control being gained by the Bevan faction. [Italics added]
The inquiry was held on November 20 by three NEC members. Mr Bevan gave evidence for his faction and made suggestions, which the NEC accepted. Mr Lewis declined to attend on legal advice. The inquiry recommended that the local officers and committees should remain suspended but that suspension should be lifted for the present; that there should be a special meeting of the general committee in January, 1978, and the annual meeting in February, 1978; that that special meeting should adopt the amended rules as to selecting delegates from trade unions as approved by the annual conference (which was calculated to reduce the voting power of the Lewis faction); that the February meeting should include the election of officers and the executive committee in accordance with the amended rules; and that the NEC inquiry committee should inquire into the activities of Mr Lewis and Mr McCormick, and that pending the result both should be suspended. [Italics added]
On December 5 the organisation committee recommended the acceptance of the report to the NEC, subject to any legal advice received before the next NEC meeting on December 15.
The Lewis faction, getting wind of the recommendations, saw that, if implemented, they would imperil their position in the local party.
The NEC suspended the local officers and committees on October 21. On November 22 Mr Lewis issued a writ claiming that the NEC had no power to make the suspension and had acted contrary to natural justice in doing so, and that the suspension was invalid. He applied for an injunction to restrain the NEC from acting on the report. Mr Justice Michael Davies dismissed the application and Mr Lewis appealed to the Court of Appeal.
The organisation committee had also recommended the suspension of Mr Lewis and Mr McCormick. They applied at once for an injunction to restrain the NEC from suspending them. Mr Justice Jupp granted the injunction but Mr Justice Milmo discharged it.
At a meeting on January 16, which the Lewis faction claimed was invalid and boycotted, the Bevan faction put a resolution, which was passed nem con, that the general meeting be held in February to elect officers. If the rules had been validly amended and the general meeting was convened in accordance with the amended rules, the Lewis faction might not have the majority they hoped for.
The question was whether the suspension was valid or not and whether the meetings were to go forward or not.
What was the law? There was no doubt that the solution of the present case must depend on the rules of the party. That meant discovering what was the true relationship between the national party and the local constituency party and the court had to look at the rules.
Each of the parties – the national and the local constituency party – was in law an unincorporated association and each a separate entity as Sir Robert Megarry, Vice-Chancellor, said in John v Rees ( 1 Ch 345, 389); but they were inextricably tied together. The legal bonds between the two associations were as tight as rules could make them. When a person joined a local constituency party he became at the same time a member of the national party. In the eye of the law he entered into two contracts, one with other members of the local party, one with the other members of the national party. He was taken to agree to both and to be bound by the rules of both. So there were two sets of rules – the national rules (yellow book) and the local constituency rules (white book) and they must be read together.
It then became apparent that the local constituency party was in no sense an independent organisation. It did not make its own rules or change them. Its rules were prescribed for it by the national party conference. They could not be changed except by the conference or by the NEC. If any question arose on them it could be referred to the NEC and their decision was final.
The NEC had direct power to discipline any member of a constituency party. They had also the duty and power to enforce party rules.
A constituency party could not be regarded as independent of the national party nor could its members. It was like a regiment. Each individual was a member of his unit but was also a member of the whole. His unit was subject to the directions of the High Command; and so was he. And that High Command in the NEC was subject of course to the party conference.
That view of the relationship was upheld by the way the constitution had been worked in the past. The NEC had exercised disciplinary powers over the local parties or their members; when there had been dissensions within a local party the NEC had repeatedly held inquiries and reorganised them [sic]. They had expelled members and suspended them.
On the construction of the rules, the NEC could suspend the officers and committees of a local party and appoint the national agent to act in their stead.
The point had been raised about natural justice and the NEC's duty to observe its rules. In John v Rees the Vice-Chancellor held that they were [sic]. His words applied no doubt to suspensions which were effected by way of punishment as when a member of the Bar was suspended from practice. But they did not necessarily apply to suspensions made as a holding operation pending an inquiry.
Often irregularities were discovered in a government department and a man would be suspended on full pay pending inquiries. No one had ever questioned such a suspension on the ground that it could not be done unless the man was given notice of the charge and an opportunity to defend himself and so forth. The suspension in such a case was merely good administration.
On the evidence there was room for saying that a state of chaos reigned within the constituency party and even within the Lewis faction itself. Mr Lewis said that the majority of the NEC when they suspended the officers were not acting with the idea of bringing chaos to an end but that the majority were supporters of left wingers like Andy Bevan; and the intervention by the NEC was for that purpose – to promote the objectives of the "left wing". If the NEC did have a purpose of that kind that might be said to be an ulterior purpose; but on the evidence no one could say that that was established. The NEC's purpose, on the evidence, was to produce order out of chaos.
What was the balance of convenience? His Lordship thought that if an injunction were granted it would not go any way towards removing the chaos. On balance of convenience, for the mere restoration of order the right thing would be to refuse an injunction.
LORD JUSTICE ORMROD, concurring, said that the most important question in the case was the extent of the NEC's powers. Mr Lewis said that there was no provision in the party constitution or in the rules for constituency parties which expressly entitled the NEC to suspend the committees or officers of the constituency parties.
His Lordship concluded that the NEC had the necessary powers to suspend the general committee, the executive committee and the officers and to appoint someone to run the constituency party pending reorganisation.
LORD JUSTICE GEOFFREY LANE, also agreeing, said that he had been driven to the conclusion that the rules in the American Cyanamid case ( AC 396) were practically impossible to apply to the present circumstances. They were designed to cover a commercial and not a political situation. In the Cyanamid type of situation it was possible to freeze the situation that existed before the dispute between the parties arose, to preserve the status quo. That would be impracticable in the present case where the situation was in a state of flux of a kind which would have delighted Heraclitus himself.
All that the court could do was to provide some stability as an interim measure. If the court succeeded to some extent in stemming the flow of writs, their efforts would not be in vain.
The courts existed as a last resort for members of a party or organisation who felt that the only way that they could assert their rights inter se was to ask the court to define what those rights were. They did not exist simply to give the kiss of life to a faction which was otherwise not viable. It would be better if the affairs of the constituency party continued for the time being to be run by Mr Underhill.
Solicitors: Trower, Still & Keeling; Milners, Curry & Gaskell.
[NOTE: Two years after this judgement (and a year after the Labour Government's defeat in the 1979 General Election), Labour's former National Agent, Reg Underhill – whose evidence had been so crucial to the loss of this case by the moderates – denounced Trotskyist infiltration of constituency Labour parties in terms almost identical to those which the moderates had used. In the years following Labour's further, catastrophic, defeat in the 1983 General Election, members of the Revolutionary Socialist League (also known as the Militant Tendency) were finally expelled from the party. They included the former National Youth Officer, Andy Bevan.]