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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
    1. Attorney-General v Aspinall [1835-42] All ER Rep 525
    2. Kruse v Johnson [1898] 1 2 QB 91
    3. Roberts v Hopwood [1925] All ER 24; [1925] AC 578
    4. Secretary of State for Education and Science v Tameside MBC [1976] 3 All ER 665; [1976] 3 WLR 641
    5. Bromley London Borough Council v Greater London Council and another [1982] 1 All ER 129
    6. Wheeler and others v Leicester City Council [1985] 2 All ER 151 (CA)
    7. Wheeler and others v Leicester City Council [1985] 2 All ER 1106 (HL)
    8. R v Lewisham London Borough Council, ex parte Shell UK Ltd [1988] 1 All ER 938
    9. Norwich City Council v Secretary of State for the Environment [1982] 1 All ER 737
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Wheeler and others v Leicester City Council [1985] 2 All ER 1106 (HL)

LORD ROSKILL:.....The council's main defence rested on s 71 of the Race Relations Act 1976.....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 1976 Act.

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 Pt II (employment) and in Pt III (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 counsel on behalf of the council that once it was accepted, as I do accept, that s 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 All ER 935, [1984] 3 WLR 1174. In his speech 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....

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' or to be so fundamental a breach of the duty to act fairly which rests on 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% population of persons who are either Asian or of Afro-Caribbean origin. Nor do I doubt for one moment the sincerity of the view....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? The playing members? The 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 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 would 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 Council of Civil Service Unions v Minister for the Civil Service. The council formulated those four questions in the manner of which I have spoken and indicated that only such 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 on the somewhat wider ground which appealed to Browne-Wilkinson LJ in his dissenting judgment.....

LORD TEMPLEMAN:..... 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 a report on possible sanctions that might be taken against the club.... 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 All ER 697, [1976] 1 QB 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 MR said ([1976] 1 All ER 697 at 709, [1976] 1 QB 629 at 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 this 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 1976 Act. 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.

For these reasons and the reasons given by my noble and learned friend Lord Roskill I would allow the appeal.