Wheeler v Leicester CC [1985] AC 1054; [1949] 1 KB 532; [1949] 1 All ER 127

KEY POINTS

• Local Government Powers are instrumental in shaping community governance, enabling authorities to make decisions for residents' well-being.

• The Race Relations Act 1976, Section 71, underscores the importance of local authorities in promoting good race relations through policy implementation.

  • In line with this legislation, local authorities create policies to combat discrimination and foster an inclusive community.

  • A focus is addressing apartheid, striving to eliminate racial segregation and cultivate a diverse and tolerant society.

• Challenges arise when community entities, like a Rugby Football Club, fail to endorse local authority policies.

  • In response, local authorities may exercise their powers, such as imposing a ban on the club's use of recreational facilities under their jurisdiction.

  • The validity of such actions hinges on the legal framework, particularly the Race Relations Act 1976, Section 71.

• This legal context sets the parameters for local authorities to act to ensure good race relations, serving as a benchmark for evaluating the lawfulness of their exercise of powers in specific instances.

FACTS

• A city council, with a longstanding policy opposing South Africa's apartheid, had allowed the city's primary rugby football club to use a recreation ground for matches and training over several years.

• In 1984, the English Rugby Football Union planned a tour to South Africa, prompting the council to question the club's stance.

  • The council sought affirmative answers, expecting the club's condemnation and active opposition to the tour.

  • The multi-racial club expressed condemnation of apartheid but acknowledged differing opinions on breaking it down.

  • The players, as amateurs, were cited as having an individual choice, provided they adhered to Rugby Football Union rules and club loyalty.

• Despite the club's anti-apartheid stance, three members participated in the South African tour.

  • In response, the council passed a resolution in August 1984 banning the club from using the recreation ground for 12 months.

  • Six club members sought judicial review, which was initially refused, leading to their appeal. 

• The Court of Appeal, in a majority decision, upheld the council's discretionary powers, citing the promotion of good race relations under Section 71 of the Race Relations Act 1976 as a valid consideration.

• The club members then appealed.

JUDGEMENT

• In the judgment, the court, upon allowing the appeal, determined that the council possessed the authority, as per Section 71 of the Act of 1976, to consider the best interests of race relations while exercising its statutory discretion in managing the recreation ground.

  • However, the court found that the council's resolution, penalizing the rugby football club for failing to support its policy by insisting on a public condemnation of the South African tour, was unreasonable.

• The court held that, in the absence of any legal infringement or improper conduct by the club, the resolution constituted a breach of the council's duty to act fairly.

  • The council's actions were deemed a procedural impropriety and a misuse of its statutory powers.

  • The court concluded that these circumstances warranted the quashing of the decision to ban the club from using the recreation ground.

• The decision of the Court of Appeal was reversed.

COMMENTARY

• Local authorities are empowered to make decisions for community well-being and implement policies promoting good race relations.

  • In this context, a city council, with an anti-apartheid stance, permitted a rugby club's use of a recreation ground.

  • However, a ban was imposed when the club's members participated in a South African tour against the council's wishes. 

• The Court of Appeal initially upheld the council's powers, citing Section 71.

• Yet, the subsequent judgment allowed the club's appeal, deeming the council's resolution unreasonable and a breach of fairness, leading to the reversal of the Court of Appeal's decision.

ORIGINAL ANALYSIS

• Plaintiff (rugby club) refused to condemn its players for playing rugby in SA during apartheid and so in response the LA, Defendant, under its powers to regulate the use of its own lands and general statutory duty to promote race relations, prevented the rugby club from playing for 12 months. 

• In CA, majority said that the council was entitled to take such action.

Browne-Wilkinson LJ (dissenting)

• Disagreed, saying:

  • It is a constitutional principle that in absence of words to the contrary a person is free to at as he please. Freedom of speech exists not because of an express provision (NB pre-HRA) but because it is not prevented by law, except to the extent that it is libelous.

  • Therefore general words should not be taken as sanctioning the interference with fundamental rights- only express words will do.

  • Therefore if in exercising a discretion which does not purport to give the DM the power to contravene fundamental rights, the DM takes into account a person’s willingness to use their speech in a certain way/avoid expressing certain views, then the decision is unlawful as it is taking into account a legally irrelevant factor. 

• HL agreed with Browne-Wilkinson LJ in holding that the LA acted unlawfully. However it approached the issue on the basis that the LA’s action was Wednesbury unreasonable. IT misused statutory powers. 

Lord Roskill

• Rather than the “wider” approach of Lord BW, he sticks to:

  • (1) Wednesbury unreasonableness in the decision arrived at and

  • (2) unfairness in procedure e.g. asking the club to assent to 4 broad questions which the club couldn’t really answer, such as “does the club agree that the tour is an affront to all black people”. 

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BW’s approach seems far sounder. It explicitly recognises that the purpose of discretion must not include the breach of fundamental rights unless this is explicitly stated. Furthermore Wednesbury unreasonableness doesn’t seem right here - Roskill acknowledged that the council may have had perfectly valid reasons in arriving at their decision, which would surely place them below the high threshold of Wednesbury unreasonableness. 

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