Many councillors are of the opinion that because they hold a public office, which provides them with powers to make certain decisions that effect the lives of private citizens, they can more or less do what they want? We've seen this time and time again and I have no need to remind everyone of the part some of us have played in trying to rectify situations where councillors have made decisions which were Ultra Vires.
The ultra vires doctrine is of course not specific to councils because its jurisdiction reaches far and wide. We have recently come to learn about a situation which involves the possible expulsion of a member of a taxi owners club whose purpose as I understand it is to provide private hire bookings to those members who make up the club or association?
From what we can gather the diciplinary hearing has come about because the individual had the audacity to apply for a Taxi Operators license. I suspect any other charge will be seen as a woeful excuse to hide the real reason for such a hearing.
I understand one particular radio company has been challenged on previous occasions and fell foul of the law so we shouldn't be surprised when one or more of them do it again? Having said that we have yet to wait and see what transpires in the coming days but the individual concerned can rest assured that should he seek redress in the courts then compensatory damages in the form of lost earnings must surely follow?
http://www.taxi-driver.co.uk/phpBB2/vie ... php?t=6181
The following information is a brief insight into the application of Ultra vires followed by the meaning of clubs and associations.
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Application of the ultra vires doctrine.
While the ultra vires doctrine in its broad sense applies to all public authorities, regardless of the types of power vested in them, an important application of the general doctrine is found in the doctrine of jurisdiction. This doctrine applies to tribunals, inferior courts and other bodies with power to take judicial decisions. If such a tribunal takes a decision that lies outside its jurisdiction, the decision may be described as ultra vires, incompetent or in excess of jurisdiction.
While the terms 'vires', 'jurisdiction' and 'competence' are often interchangeable, some aspects of the control of jurisdiction require separate consideration.
Another important application of the ultra vires doctrine arises where legislative powers are conferred by Parliament upon ministers of the Crown, government departments, local and other authorities. Delegated legislation has the force of law only when it conforms to the powers granted by statute.
Where an Act of the Scottish Parliament exceeds the legislative competence entrusted to it (for example, by legislating on a reserved matter or in breach of rights protected by the Human Rights Act 1998 (c 42)), the offending provision is ultra vires and void.
In its broadest sense, the ultra vires doctrine refers to the whole body of law relating to the grounds on which an action or decision of a public authority may be subject to judicial review, including defects of procedure and breach of natural justice.
In a much narrower sense, the ultra vires doctrine refers to the rule that a public authority acts ultra vires if it embarks on an activity or enterprise which ex facie is outside its legal capacity. Where legislation provides a right to apply to the Court of Session for judicial review of a certain class of decision, and sets out the grounds on which applications may be based, it may be unclear whether these grounds impart the narrow or broad meanings of 'ultra vires'.
However, since the statutory right to apply to the court may be coupled with an exclusion of other judicial remedies, provisions which confer power on the court to review an official decision on the ground that it 'is not empowered to be granted' under the statute ought to receive a broad interpretation.
In some cases of an alleged excess of powers, the outcome may turn on a pure question of law, namely whether the enabling Act may be read as authorising the decision under review. Where a decision is ultra vires in this narrow sense, it is immaterial that the authority acted reasonably in the public interest and by a fair procedure. However, a decision that passes this test of vires may be subject to challenge on further grounds such as improper purposes, irrelevant considerations, abuse of discretion or unfair procedure; in these cases, the court must look in detail at the particular course of action taken by the authority and the reasons for it. Thus action that in law is within an authority's powers may, depending on the circumstances, be ultra vires in the broad sense of the term.
Although the ultra vires doctrine has lost much of its former importance within company law, it still applies to a wide range of unincorporated associations, clubs, trade unions and trusts, where it serves to reinforce the contractual rules of association, the trust deed or other constituent document of the body in question.
1 See para 1 above.
2 See eg Watt v Lord Advocate 1979 SC 120, 1979 SLT 137.
3 See paras 40–46 below.
4 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, [1974] 2 All ER 1128, HL: see paras 93–96 below. See also Boddington v British Transport Police [1999] 2 AC 143, [1998] 2 All ER 203, HL.
5 Scotland Act 1998 (c 46), s 29. Such disputes are 'devolution issues' and subject to special procedure: s 98, Sch 6.
6 See para 20 below.
7 See eg Peter Holmes & Son v Secretary of State for Scotland 1965 SC 1, 1965 SLT 41 (meaning of 'not empowered to be granted');
8 Ie as in Lithgow v Secretary of State for Scotland 1973 SC 1, 1973 SLT 81: see para 157 below.
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Associations and Clubs
Definition.
An association may be defined as a group of persons bound together by agreement for a particular purpose. A club constitutes one example of an association. An association is distinct from a company registered under the Companies Acts in that it is not legally incorporated, and from a partnership in that its primary purpose is not profit making; in addition it differs from both a company and a partnership in not being treated in Scots law as a distinct person.
It should also be differentiated from ashop club registered under the Shop Clubs Act 1902 (c 21), a society registered under the Friendly Societies Act 1974 (c 46), and an employers' association or trade union under the Trade Union and Labour Relations Act 1974 (c 52), all of which are unincorporated associations to which special statutory rules apply. Churches are governed by special rules.
Similarly an investment club, since it has a profit-making purpose, is not such an association, being either a joint adventure by a number of persons in association for profit-making motives, or no more than a group of people who meet together to exchange views about stocks and shares and possibly to reduce the expense of buying and selling shares by co-operating and dealing in larger units and getting the benefit of reduced commissions from brokers.
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Types of clubs.
There are two types of clubs: (1) members' clubs, where the assets and property of the club belong to its members1, and (2) proprietary clubs, where ownership is in the hands of one person and the members' contributions go to him to use as he sees fit2. In the latter form of club the owner retains the profits and is liable for the losses, and the members of the club are in effect its customers.
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Members Clubs
Constitution and Membership
General
While a club may be incorporated with limited liability either by shares or guarantee (in which case it is no different from any other limited company), an unincorporated members' club is a society of persons each of whom contributes to the club by way of entry fees, subscriptions or both, out of which the expenses of running the club are paid.
It is not recognised as having any legal existence apart from the members of whom it is composed1. Because of this, transactions of members with the club are not regarded as sales, but as a release of the goods supplied. They are therefore not governed by the Trade Descriptions Act 1968 (c 29). In an English decision2, the Lord Chief Justice refused to apply that Act to the sale of cigarettes to a member in a club; he declined to decide exactly what the wording of the Act meant, but declared:
'it seems to me clear that whatever the word “supply” means, the Act is not dealing with an ordinary members' club, but that it relates to transactions of a commercial nature'.
Although there is no decision governing the situation, it would appear that in logic the Sale of Goods Act 1979 (c 54) would not apply either, as there has been no contract of sale, though the Act does purport to cover sales between one part owner and another as being within its provisions, and the release of goods to a club member might be regarded as a transfer of property in goods to a buyer for a money consideration.
1 Steele v Gourley and Davis (1886) 3 TLR 118 at 119, per Day J.
2 John v Matthews [1970] 2 QB 443, [1970] 2 All ER 643, DC.
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Constitution
An unincorporated club is formed by a number of people contracting together for a particular purpose or purposes. The club itself is not regarded as having an existence apart from its members. The constitution represents the contract uniting them, setting out the purposes of the association and defining the rights and duties of the members.
It is not essential that all the purposes of the association be pursued, and indeed the purposes can be changed at any time with the consent of the members. The doctrine of ultra vires does not have any application to a club in respect of its purposes. Unless there are express provisions governing the changing of the club's purposes or rules (in which case the provisions require to be observed), any addition or alteration can only be made with the consent of every member.
If changes have been made and acquiesced in for some time, members may be barred from objecting to them, and in particular new members who have joined the club after the changes have been made. Such acquiescence, however, would not preclude members from objecting to further changes, and the reasonableness of the proposed changes is irrelevant; a member of the Oxford and Cambridge Club, whose original subscription of 5 guineas had been raised on three occasions up to 8 guineas, could legitimately refuse to pay the 'extortionate increase' in 1902 to 9 guineas which had been approved by a majority in general meeting — a charge which in present inflationary days when subscriptions are expected to increase regularly would probably not be regarded as a change to which a member could object.
Acquiescence, however, in the introduction of a rule allowing alterations may validate such introduction so that subsequent changes in accordance with the new rule themselves are valid. Even when power is given to alter rules, such alterations cannot be made with retrospective effect in the absence of express power in that regard.
Normally the constitution will set out what payments have to be made by members and what rights they have in the property, both during the lifetime of the club and on its dissolution, and make provision for the method of admission, expulsion and resignation of members, and the holding of ordinary and extraordinary meetings. Members may surrender some or all of these powers to a committee to which the running of the club is entrusted.
Such constitution, to which members are taken to have given their consent on admission to the club, will regulate the position of members inter se. With regard to their rights and duties against or towards third persons, the ordinary common law will apply, with members' responsibility for the actings of their committee being governed by the laws of agency.
The rules of the club can be altered at any time in accordance with the procedures laid down in them. Where there is no provision for such alterations but alterations have been made and acquiesced in by members, members may be held to be bound by such changes. An alteration of rules, however, cannot be made at a meeting as part of its general business and requires special notice to be given to members. Nevertheless, provisions for dissolution can be introduced as these have been held not to conflict with the fundamental purposes of a club.
The courts will not normally intervene in the regulation of a club's business, leaving a club to conduct its own affairs in accordance with its own rules. They may, however, concern themselves with the disposal and administration of property belonging to the club, and will be prepared to interpret the rules to ensure that they are applied in accordance with the rules of natural justice. It is not possible for a club to oust the jurisdiction of the courts, even if wide discretion is entrusted to its committee.
1 Cassel v Inglis [1916] 2 Ch 211. For styles of model rules for members' and proprietary clubs, see J F Josling and L Alexander The Law of Clubs (5th edn, 1984) App I, III.
2 Morgan v Driscoll (1922) 38 TLR 251.
3 Harington v Sendall [1903] 1 Ch 921; Re Tobacco Trade Benevolent Association, Sinclair v Finlay & Co Ltd [1958] 3 All ER 353, [1958] 1 WLR 1113.
4 Harington v Sendall [1903] 1 Ch 921.
5 Dawkins v Antrobus (1881) 17 Ch D 615 at 632, CA, per Brett LJ.
6 See agency and mandate (Reissue).
7 Harington v Sendall [1903] 1 Ch 921 at 926, per Joyce J.
8 Blair v Mackinnon 1981 SLT 40, OH.
9 Dawkins v Antrobus (1881) 17 Ch D 615, CA.
10 Gardner v M'Lintock (1904) 11 SLT 654, OH.
11 St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 SLT 171.
NOTE 6 — See now agency and mandate (Reissue). See M v Hendron [2007] CSIH 27, 2007 SCLR 360, 2007 SLT 467: opinion (per Lord Osborne) that it was difficult to see why in principle particular identified members of an unincorporated association could not be constituted as agents for the whole of the membership for certain purposes. For a commentary, see 2007 SLT (News) 108.
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Committee and trustees.
The management of the affairs of a club is normally entrusted to a committee elected by the members. The rules of the club will lay down its powers and duties, and the extent to which it can commit club funds by entering into contracts with tradesmen and others. Basically the committee is agent for the members. It may have power to form sub-committees and to delegate duties and authority to them. The secretary and treasurer will normally report to the committee and take instructions from it. The members of the committee may in certain circumstances be personally liable in delict if they have failed to take action in respect of a known danger or employed an incompetent tradesman.
In the absence of an express or implied provision, the committee has no right to be indemnified by the individual members of the club against liabilities incurred by it in its actings, nor indeed have guarantors of the club's obligations. The committee cannot pledge members' credit. Any borrowings, however, will normally be made on the security of the club's premises, since members have no personal liability for repayment. On the other hand, by implication the committee has power to employ staff for the running of the club and will be indemnified out of the club funds for any liability which may thereby result in meeting wages, redundancy payments and claims for unfair dismissal. The club, however, is responsible as employer for national insurance contributions.
The property of the club will frequently be vested in individuals to hold as trustees for the club. They may be separate from the members of the committee. They hold such property for the use and enjoyment of members and must deal with it in accordance with the wishes of the club members as resolved on at meetings of the club. The club as employers will be liable if requirements under such statutes as the Health and Safety at Work etc Act 1974 are not observed.
The committee will normally submit to the members rules for the running of the club, in particular rules governing the admission of guests and rules fixing the hours for the sale and supply of intoxicating liquors. The days and times when the club premises will be open to members will also probably be so regulated.
1 Brown v Lewis (1896) 12 TLR 455, DC.
2 Steele v Gourley and Davis (1886) 3 TLR 118; Overton v Hewett (1886) 3 TLR 246.
3 6 Halsbury's Laws of England (4th edn) para 255.
4 Social Security Act 1975 (c 14), s 2(1)(a); Midland Sinfonia Concert Society Ltd v Secretary of State for Social Services [1981] ICR 454.
5 As to the general duties of employers to their employees, see the Health and Safety at Work etc Act 1974 (c 37), s 2, and employment (Reissue) paras 523 ff.
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Admission.
A club may by its constitution have special requirements for membership and different methods of admission. If the club serves liquor, an interval of at least two weeks must elapse between the nomination and election of ordinary members.
It is not open to an unsuccessful applicant for membership to complain that the rules for admission in his case have not been observed, though it may be open to his proposer and seconder to make such a complaint. Nor will refusal of membership give grounds for any legal action, there being no contract until an offer of membership has been accepted. Once admitted, a member must abide by the rules of the club, of which he will normally receive a copy upon admission.
The rules normally lay down the procedure for admission and specify at what point the applicant becomes a member. On receiving notice of his admission, the candidate normally does not become a member until he has paid his subscription and admission fee, and therefore retains the right to accept or rejectmembership until the contract is completed by such steps as the rules lay down.
The application for membership is merely a preliminary step, with the election constituting the offer of membership. On the other hand, if the subscription is payable by instalments, the applicant is liable to meet the balance even if he resigns before an instalment is due. A club, however, has no automatic right of lien over a member's possessions for outstanding subscriptions or other sums owed.
If no procedure for admission is laid down, arguably the consent of all members is required to admit an applicant to membership. However, if the rules entrust to the committee the general management of the club's affairs, this may infer a discretion on the part of the committee. If, on the other hand, membership is declared to be open to all who support the club's objects and have paid the subscription, it is not possible for existing members to prevent applicants tendering such subscriptions from becoming members.
While clubs are generally free to make whatever rules they please regarding membership, where there are twenty-five or more members the Race Relations Act 1976 applies and it is illegal to allow racial prejudice in club rules governing admission or allocation of club privileges or the use of club facilities4.
It seems that clubs are not covered by the Sex Discrimination Acts 1975 (c 65) and 1986 (c 59)5. There have, however, been suggestions that they be amended in line with the Race Relations Act 1976 to prevent unequal treatment of women club members, particularly in view of the fact that in many areas clubs are more important for social and recreational purposes than are hotels and bars.
1 Licensing (Scotland) Act 1976 (c 66), s 107(1)(e). That section also lays down the steps to be taken before a certificate of registration will be granted.
2 See generally J F Josling and L Alexander The Law of Clubs (5th edn, 1984) p 34, and cf Denison v Wynn (1909) 26 TLR 64, where a member died before all the instalments were paid.
3 Woodford v Smith [1970] 1 All ER 1091n, [1970] 1 WLR 806.
4 Race Relations Act 1976 (c 74), s 25.
5 Bennett v Football Association Ltd (1978) 28 July, CA (unreported), referred to in Greater London Council v Farrar [1980] 1 WLR 608 at 613, EAT.
806 Admission
TEXT and NOTE 1 — From a date to be appointed delete the second sentence: Licensing (Scotland) Act 1976, s 107 prospectively repealed by the Licensing (Scotland) Act 2005 (asp 16), s 149, Sch 7.
TEXT and NOTES 6, 7 — At the end of the paragraph add: The Disability Discrimination Act 1995 has now been extended to clubs with more than twenty-five members, so that it is unlawful to discriminate against disabled persons in club rules governing admission or allocation of club privileges or the use of club facilities or services6. Similarly the Equality Act (Sexual Orientation) Regulations 2007 makes it unlawful for clubs with more than twenty-five members to discriminate on grounds of sexual orientation when admitting to membership or in providing access to facilities or services7.
6 Disability Discrimination Act 1995 (c 50), s 21F (added by the Disability Discrimination Act 2005 (c 13), s 12). For the meaning of 'discrimination', see DDA 1995, s 21G (as so added). Regulations may make provision imposing a duty on clubs to make adjustments for disabled persons: DDA 1995, s 21H (as so added). For the regulations made under DDA 1995, ss 21F, 21G and 21H, see the Disability Discrimination (Private Clubs etc) Regulations 2005, SI 2005/3258.
7 Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263, reg 16. For an exception where the main object of the association is to provide the benefits of membership to persons of a particular sexual orientation, see SI 2007/1263, reg 17.
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Expulsion.
The constitution of a club normally contains rules for expulsion and deprivation of membership. One usual ground is failure to pay the club's subscription within a given period. In the absence of express power a new rule with retrospective effect may not be adopted to expel a member for past conduct.
If there is no provision in the rules for expulsion, it may still be competent if carried out on the votes of the members after due notice has been given to the person to be expelled, with an adequate explanation supplied of the cause of such a step and an opportunity afforded to the member to answer; and where the rules for expulsion have been complied with and the committee has acted properly and in good faith, the court is not entitled to interfere, even if it considers that there has been an error of judgment and the committee or members have come to the wrong conclusion.
It is for the person expelled to prove bad faith or a failure to observe the rules of natural justice, since a committee with wide discretionary powers is deemed to be acting in a quasi-judicial capacity. However, the court will entertain actions where it can be established that a civil right has been affected, patrimonial loss incurred or the rules of natural justice breached. The courts are generally reluctant to interfere with the internal actings and decisions of private institutions such as clubs and associations.
They are more ready to listen to a complaint of expulsion which has been brought about contrary to the association's rules or which involves a denial of natural justice if the resulting loss of membership also involves patrimonial loss, a matter carefully considered in the Cardonald Bowling Club case. In particular, the courts are prepared to intervene in the case of trade unions where a loss of membership may disbar the member from employment and his livelihood is at stake.
Court decisions of the last century must be treated with caution, as the social stigma attached to expulsion from a club has become much less than formerly, and the serious consequences to the standing of a person so expelled no longer ensue to the same extent. In the bitterly fought case of Dawkins v Antrobus, which went to the Appeal Court in England, Colonel Dawkins of the Travellers Club sent a critical pamphlet to a fellow member, General Stephenson, at the Guards Barracks, in an envelope headed 'Dishonourable conduct of Colonel Stephenson'. A general meeting of the club expelled Dawkins for his ungentlemanly conduct. 'Honour', 'character' and 'disgrace' were words much employed in the subsequent proceedings.
The remedy of a member improperly expelled is an action for declarator that he is still a member and interdict against refusing him the club's facilities. Reinstatement rather than damages is his remedy, unless he can show a breach of contract from which loss has resulted.
1 Dawkins v Antrobus (1881) 17 Ch D 615, CA.
2 Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346.
3 Fisher v Keane (1878) 11 Ch D 353.
4 Bell v Trustees 1975 SLT (Sh Ct) 60; Tait v Central Radio Taxis (Tollcross) Ltd 1987 SLT 506.
5 Anderson v Manson (1908) 16 SLT 281, OH; Bell v Trustees 1975 SLT (Sh Ct) 60; Brentnall v Free Presbyterian Church of Scotland 1986 SLT 471.
6 Wood v Woad (1874) LR 9 Exch 190.
7 See para 817 below.
8 Marshall v Cardonald Bowling Club 1971 SLT (Sh Ct) 56.
9 Dawkins v Antrobus (1881) 17 Ch D 615, CA.
10 Baird v Wells (1890) 44 Ch D 661, CA; Lee v Showmen's Guild of Great Britain [1952] 2 QB 239 at 341, [1952] 1 All ER 1175 at 1180, CA.
11 Young v Ladies' Imperial Club [1920] 2 KB 523, CA; Abbott v Sullivan [1952] 1 KB 189 at 197, [1952] 1 All ER 226 at 231, CA.
808 Expulsion
NOTE 4 — Tait v Central Radio Taxis (Tollcross) Ltd reclaiming motion allowed 1989 SC 1, 1989 SLT 217. See Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386, 2004 Scot (D) 1/3, OH.
NOTE 6 — Whether the conduct of the member in question is relevant conduct for the purpose of disciplinary proceedings is a jurisdictional question for the court: Wiles v Bothwell Castle Golf Club 2006 SCLR 108, 2005 SLT 785, OH.
NOTE 8 — See Morrison v Showmen's Guild of Great Britain 1992 GWD 36–2089, Ex Div (ultra vires disciplinary proceedings). See also Graham v Ladeside of Kilbirnie Bowling Club 1990 SC 365 (for further proceedings in relation to quantum of damages, see 1993 SCLR 813, Quantum, 1994 SLT 1295n, OH); and Pride of Midlothian Orange Lodge No 160 v Grand Orange Lodge of Scotland 1990 GWD 21–1157, OH.
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