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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Wheeler v Leicester City Council [1985] UKHL 6 (25 July 1985)
URL: http://www.bailii.org/uk/cases/UKHL/1985/6.html
Cite as: [1985] AC 1054, [1985] UKHL 6

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/245

    In re Wheeler and others


    JUDGMENT

    Die Jovis 25° Julii 1985

    Upon Report from the Appellate Committee to whom was
    referred the Cause In re Wheeler and others, That the
    Committee had heard Counsel on Wednesday the 10th day of this
    instant July upon the Petition and Appeal of Peter John
    Wheeler of The Brackens, Ragdale, Leicestershire, William
    Henry Hare of Wheatholme Farm, South Clifton, Newark,
    Nottinghamshire, Graham George Willans of 44 Dumbleton
    Avenue, Leicester, Peter Herbert of 35 Rowley Fields Avenue,
    Leicester, Kevin Andrews of 1 Whitehall Road, Evington,
    Leicester and John Albert Allen of 60 Dorchester Road,
    Leicester praying that the matter of the Order set forth in
    the Schedule thereto, namely an Order of Her Majesty's Court
    of Appeal of the 14th day of March 1985, might be reviewed
    before Her Majesty the Queen in Her Court of Parliament and
    that the said Order might be reversed, varied or altered or
    that the Petitioners might have such other relief in the
    premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as also upon the Case of the
    Leicester City Council lodged in answer to the said Appeal,
    and due consideration had this day of what was offered on
    either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal of the 14th day of March 1985 complained of in the
    said Appeal be, and the same is hereby, Set Aside: And it is
    further Ordered, That an Order of certiorari issue to quash
    the decision of 21st August 1984: And it is further Ordered,
    That the case be, and the same is hereby, remitted back to
    the Queen's Bench Division with liberty to the Appellants to
    apply for such further relief as may be thought necessary to
    protect their rights: And it is also further Ordered, That
    the Respondents do pay or cause to be paid to the said
    Appellants the Costs incurred by them in the Courts below and
    also the Costs incurred by them in respect of the said
    Appeal to this House, the amount of such last-mentioned Costs
    to be certified by the Clerk of the Parliaments if not agreed
    between the parties.

    Cler: Parliamentor:

    HOUSE OF LORDS


    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.

    - 10 -


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