Wheeler and others v Leicester City Council  2 All ER 151 (CA)
ACKNER LJ: The appellants are six members of the Leicester Football Club.... The club are appealing against the decision of Forbes J, who on 27 September 1984 refused to grant it judicial review of the decision of the respondents, the Leicester City Council, given on 21 August 1984 to suspend and ban the club and its members from using the Welford Road recreation ground for its rugby matches for 12 months. The relief sought by the application included an order of certiorari to quash the decision, a declaration that it was void and of no effect, an injunction restraining the council from implementing or purporting to implement the decision, and damages.
The recreation ground has been used by the club for very many years...Hitherto there has been a very good relationship between the club and the council and the rather haphazard arrangements for the collection of fees for the use of the ground has worked smoothly.
The facts which have given rise to the present dispute are quite simple. On 30 March 1984 the English Rugby Football Union accepted an invitation to take a touring side to South Africa. On 9 April 1984 the identity of the side was announced and it included three members of the club... A week or so later, on 17 April, the council asked for a meeting with the club authorities. The reason for doing so and the basis for their subsequent action is set out in detail in the affidavits before us and can be shortly summarised. It is said that 'about 25% of Leicester's population has either Asian or Afro-Caribbean origins. The council is firmly committed to the concept of racial equality and fairness, and has established a race relations unit under the direction of the chief executive. Following a report by the chief executive on the establishment of principles on which a race relations policy for the council could be based, the policy and resources committee on 16 March 1982 adopted a number of general principles to give effect to the council's views.
In June 1982 resolutions were adopted in relation to South Africa and in particular to the boycotting of South African goods, and on 6 October 1982 a policy decision was taken that there were to be no sporting links with South Africa. The council considered that good relations between persons of different racial groups was encouraged by their taking a firm stand on relations with South Africa and they strongly held the view that they should support the Gleneagles Agreement made in 1977 between the Commonwealth heads of government, which recorded that it was the urgent duty of the signatories(
'vigorously to combat the evil of apartheid by withholding any form of support for, and by taking every practical step to discourage contact or competition by their nationals with sporting organisations, teams or sportsmen from South Africa'.
The council considered the club to occupy an important role in the life of the city. It was identified with the city and on account of its standing and prestige in the sporting world, would be seen as an 'ambassador' for Leicester. The council, at a meeting on 17 April 1984, accordingly required the club to press the Rugby Football Union and the three members of the club to call off the tour. Following a further meeting, the club, on 14 May 1984, gave its response. It stated that it joined with the council in condemning apartheid, but it recognised that there were differences of opinion over the way in which the barriers of apartheid can be broken down. It pointed out that although the government was opposed to the tour, it had not declared sporting contacts illegal or even applied sanctions to those involved in tours. It observed that the decision of 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 stating that it merited serious consideration. The club made the further point that Rugby Union players as amateur sportsmen had individual choices as to when and where to play, subject only to the constraints of Rugby Football Union rules and club loyalty. It concluded by stating that the club, having read the memorandum to the Rugby Football Union prepared by the anti-apartheid movement, and accepting the serious nature of its contents, had supplied copies to the tour players and asked them seriously to consider the contents before finally reaching a decision whether to tour.
The tour took place between 15 May and 10 June 1984. On 21 August 1984 there was a meeting of the policy and resources committee of the council, when it was decided that the club be suspended from using the 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. This decision, which was communicated to the club on the following day, was taken because the council considered that the club should have condemned the tour and positively discouraged its members from playing....
The issue which we have to determine is whether the council acted lawfully in so rescinding the club's licence to use these pitches.
The council hold and administer this recreation ground pursuant to s 10 of the Open Spaces Act 1906 in trust to allow, and with a view to, the enjoyment thereof by the public as an open space. Under s 76 of the Public Health Amendment Act 1907 the council have power to set apart pitches for the purpose of football being played thereon.... Section 56 of the Public Health Act 1925 gives the council power to make charges for the use of the pitches.... Counsel for the council has submitted, and I entirely accept, that in exercising their discretion the council are entitled to take into account the effect that such an exercise would have on the performance of their other statutory functions...
The statutory function and duty which counsel submits the council were fully entitled to take into account in exercising their discretionary powers in relation to this recreation ground is to be found in s 71 of the Race Relations Act 1976...:
'it shall be the duty of every local authority to make appropriate arrangements with a view to securing that their various functions are carried out with due regard to the need....(b) to promote good relations, between persons of different racial groups'.
Counsel for the club accepts that a local authority is, vis-à-vis race relations, in a very special position. It is the local authority that provides many of the social services, it is a substantial employer of labour and is thus capable of setting an example in regard to race relations conduct and policies which is likely to be followed. Notwithstanding this concession, counsel submits that this section is what he describes as an 'inward-looking' section, directed to requiring that the local authority itself maintains the standards laid down by the 1976 Act, that is to say its codes of practice in regard to its own internal behaviour so as to comply with the requirements of the 1976 Act. It is a section whose function is limited to ensuring that the local authority puts its own house in order.
I consider this to be too narrow a construction. To my mind the section is imposing an obligation on the local authority, when it considers discharging any of its functions which might have a race relations content, to do so in such a manner as would tend to promote good relations between persons of different racial groups. Accordingly, in my judgment, the council were fully entitled when exercising their discretionary powers in relation to this recreation ground to have regard to the purposes expressed in s 71.
[T]his leaves only one final question to consider. Can it be said in the circumstances of this case that no reasonable local authority could properly conclude that temporarily banning from the use of its recreation grounds an important local rugger club, which declined to condemn a South African tour and declined actively to discourage its members from participating therein, could promote good relations between persons of different racial groups? (see the well-known Wednesbury test. Forbes J was at pains to point out, as I certainly would wish also to do, that courts are not concerned with the merits of the two rival views, no doubt equally honestly held, as to the value of severing sporting links with South Africa. I am fully prepared to accept that, even amongst those who feel strongly that sporting links should be severed, there may be some who could take the view that the club acted wholly reasonably in the action it took and should not have been expected to go further. But to accept the mere existence of such a school of thought does not establish that the council's decision was perverse and this is what the club is obliged to do to succeed under this head. Nor is the club's case advanced by emphasising that the council were imposing a sanction against members of the club for refusing publicly to indorse the reasonable views of the council and thereby interfering with the club's freedom of speech. The view which the council held as to the importance of severing sporting links with South Africa had clearly been fully considered by the council well before the events of 1984, and in view of the make-up of the population of the city it was a view which understandably was very strongly supported. It represented no more than that clearly recorded in the Gleneagles Agreement. In my judgment it would be quite wrong to categorise as perverse the council's decision to give an outward and visible manifestation of their disapproval of the club's failure, indeed refusal, 'to take every practical step to discourage' the tour, and in particular the participation of its members.
I would accordingly dismiss this appeal.
BROWNE-WILKINSON LJ. I agree with Ackner LJ that the council were entitled to take into account the need to promote good race relations in making their decision to suspend the use by the club of the recreation ground. I can see no reason to limit the ambit of s 71 of the Race Relations Act 1976 so as to make it applicable only to the internal organisation of the council's business.....
However, in my judgment the appeal should be allowed on a point of fundamental importance. The case raises a conflict between two basic principles of a democratic society: viz, on the one hand, the right of a democratically elected body to conduct its affairs in accordance with its own views and, on the other, the right to freedom of speech and conscience enjoyed by each individual in a democratic society...
It has not been, and could not be, contended that the view adopted by the club was in anyway unlawful or unreasonable: it just differed from the reasonable view held by the council.
It is... clear that the council decision was taken for the purpose of imposing a sanction against the club for its failure publicly to indorse the views of the council on this issue. The council's decision was to exercise discretionary powers conferred on them by the legislature over publicly owned property in a manner adverse to the club. As it seems to me, there is no doubt but that the club was punished for its failure to speak and act in the particular way required by the council.
The question, therefore, is whether general powers conferred on elected public bodies for the administration of public property or money can lawfully be used to punish those who lawfully and reasonably decline to support the view held by the public body.
Until comparatively recent times this sort of question did not arise in practice. Without any written constitution ensuring individual human rights, constitutional conventions were observed whereby the majority exercised their powers so as to give effect to their own policies but not so as to discriminate against individuals who did not agree with them. However, with the present polarisation of political attitudes the observance of such conventions has diminished. There is no written constitution which delimits what is within the ambit of the powers of the elected majority by declaring certain individual rights which cannot be overridden by the views of the majority.
In my judgment it is undoubtedly part of the constitution of this country that, in the absence of express legislative provisions to the contrary, each individual has the right to hold and express his own views....
Counsel for the club also sought to rely on certain articles of the Universal Declaration of Human Rights (Paris, 10 December 1948; UN 2 (1949) Cmd 7662) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953) Cmd 8969). Both undoubtedly include freedom of conscience and speech amongst the basic human rights. Neither forms part of the internal law of the United Kingdom and, since in my judgment they do not extend the rights any further than those established by our own domestic law, it is not necessary in this case to consider them further.
In my judgment, if the decision of the council in the present case is lawful, there is a dangerous risk to those fundamental freedoms of the individual. This danger must not be overlooked just because in the present case the council were acting from the highest motives in seeking to promote a cause of which most people would approve. The courts' decision in each case cannot be allowed to depend on the courts' opinion of the merits of the views or motives of the public authority. If that were to be the law, the individual's freedom of speech and conscience would be a freedom to speak and act only as judges think right. Therefore, since the court cannot base its decisions on the merits of the rival views, it must follow that if this decision of the council is lawful all other decisions to penalise those who do not publicly agree with the majority view would also have to be held valid.....
Were it not for the provisions of s 71, I would have no doubt that the decision would be invalid. In my judgment, general powers such as those conferred by the Open Spaces Act 1906 and the Public Health Acts cannot in general be lawfully exercised by discriminating against those who hold particular lawful views or refuse to express certain views. Such general powers are conferred by Parliament for the purpose of administering public property for the benefit of the public at large, irrespective of their views or beliefs. If it were permissible in exercising such powers to take into account the views expressed or held by individuals, Parliament must be taken to have impliedly authorised the doing of an act by the local authority inconsistent with the fundamental freedoms of speech and conscience.
In my judgment Parliament is not to be taken to have intended to confer such a right unless it has expressed such intention in the clearest terms. Basic constitutional rights in this country such as freedom of the person and freedom of speech are based not on any express provisions conferring such a right but on freedom of an individual to do what he will save to the extent that he is prevented from so doing by the law. Thus, freedom of the person depends on the fact that no one has the right lawfully to arrest the individual save in defined circumstances. The right to freedom of speech depends on the fact that no one has the right to stop the individual expressing his own views, save to the extent that those views are libellous or seditious. These fundamental freedoms therefore are not positive rights but an immunity from interference by others. Accordingly, I do not consider that general words in an Act of Parliament can be taken as authorising interference with these basic immunities which are the foundation of our freedom. Parliament (being sovereign) can legislate so as to do so; but it cannot be taken to have conferred such a right on others save by express words....
In my judgment the provisions of s 71 of the 1976 Act do not alter this position. That section does not expressly authorise existing powers to be used so as to discriminate against those who hold lawful views on racial matters....
SIR GEORGE WALLER:...Were the council entitled in making 'appropriate arrangements' for the carrying out of their functions with due regard to the need 'to promote good relations between persons of different racial groups' to express their disapproval by refusing a licence which they would have otherwise granted? Can it be said that 'they have taken into account matters which they ought not to take into account' or have 'neglected to take into account matters which they ought to have taken into account', or was their decision 'so unreasonable that no reasonable authority could ever have come to it'? (see Associated Picture Houses v Wednesbury Corp)....
In my opinion the argument based on interference with fundamental rights fails. Nobody is interfering with the right to express an opinion. The discouraging of rugby football players from going to play rugby in South Africa is not an interference with such a right. The council had to consider a different question, namely how to perform their statutory duty under the 1976 Act and there was no interference with right of free expression. Even if there were, the statute is part of the law and would have to be enforced.
Was this action taken simply to satisfy some voters? The purpose of the 1976 Act was to improve relations between different racial groups in this country and the council are entitled to have this in mind when exercising their discretion to grant a licence. If the Leicester Football Club accepted an invitation as a club to go to South Africa and as a result the council decided to refuse the club a licence, such a decision would be one with which it would be difficult for the court to interfere. The question which has concerned me is whether the position is the same when three distinguished members of the club go. Is it reasonable to punish the club for failing to try to stop them? If this country can freely enter into an agreement to 'combat the evil of apartheid by taking every practical step to discourage contact with sporting organisations from South Africa, it is difficult to see how it could be unreasonable for a council in the position of Leicester City Council to take the steps which they did, even though a number of innocent members of the club would be affected. I have come to the conclusion that it is not possible to say that the decision of Leicester City Council was so unreasonable that no reasonable authority could ever have come to it. I would, therefore, dismiss this appeal.