Paul Birch v Paula Brookfield & Ors

Rules of an unincorporated association form a contract and may incorporate external guidance or codes by reference where the wording is sufficiently wide and the provisions are apt for contractual effect. Lesser disciplinary sanctions may coexist with a distinct contractual procedure for withdrawal of the whip.

Procedural fairness is assessed by the court in the context of the whole process. A procedural departure does not necessarily invalidate a decision, particularly where it causes no actual unfairness and is promptly corrected or followed by a rehearing. Substantive contractual discretion is reviewed for good faith and rationality, without substituting the court’s view for that of the decision-maker.

The claimant, a former Labour councillor, sued representative members of the Wolverhampton Labour Group for alleged breach of the association contract. He challenged a written warning and a purported decision to remove him from council committees following a complaint by another councillor.

The issues included whether the Labour Group Disciplinary Procedures and the council’s code of conduct formed part of the contract, whether the sanctions were contractually available, and whether the disciplinary process and decisions breached express or implied terms of fairness, good faith and rationality.

1. Contractual incorporation. The Wolverhampton Labour Group Rules incorporated by reference the relevant Labour Party rules, the conduct standards in the council’s code of conduct and the Labour Group Disciplinary Procedures. The wording was sufficiently wide, and the incorporated provisions were consistent, coherent and apt for contractual effect. A member was bound by accessible rules whether or not he had seen or known of the particular provisions.
2. Available sanctions. The Labour Party rule concerning withdrawal of the whip regulated that sanction and its enhanced safeguards. It did not exclude lesser sanctions authorised by the Disciplinary Procedures, including a warning and removal from positions within the group’s province. A warning was therefore within the Chief Whip’s contractual authority.
3. Committee removal. Removal from council committees had to be dealt with by the full Labour Group and implemented through the council’s statutory machinery. The Chief Whip’s purported immediate removal of the claimant was unauthorised and contractually ineffectual. It was never implemented and was promptly replaced by a proposal for a group vote. It therefore did not invalidate the warning or the underlying finding of misconduct.
4. Procedural fairness. The core requirements were an unbiased tribunal, notice of the misconduct alleged and an opportunity to answer it. The claimant was not given advance notice of the nature of the complaint or reminded of his right to a companion. However, the complaint was fully identified at the meeting, he had an opportunity to respond, no actual disadvantage was shown, and a later group process provided a rehearing on sanction. Considering the process as a whole, there was no breach of natural justice.
5. Good faith and rationality. The court would not substitute its own view for the contractual decision-maker’s. The Chief Whip acted in good faith and rationally considered relevant matters. It was rational to find that the claimant’s inaccurate public criticism and conduct towards the complainant breached incorporated standards concerning respect, harassment, disrepute and misuse of position. A 12-month warning was also within the range of rational decisions, particularly in light of the previous warning.
6. Freedom of expression. Obiter, freedom of expression was a relevant consideration for a local party decision-maker, although the Human Rights Act 1998 might not apply directly to a private political association. The decision-maker had adequately considered the relevant Nolan principles and the balance between political expression and personal attacks.
7. The claim was dismissed. No injunction, declaration or damages were awarded or justified.