Ahsan v Watt (formerly Carter) (sued on behalf of the Labour Party) [2007] UKHL 51
House of Lords
Lord Hoffmann, Lord Rodger, Lord Walker, Lord Carswell and Lord Brown
21 November 2007
When selecting candidates for elections, political parties are not a “qualifying body” for the purposes of s 12 of the Race Relations Act 1976 (RRA 1976). They do however fall within s 25 and may not, therefore, discriminate against potential candidates on racial grounds.
By reason of issue estoppel, an unappealed decision made by a competent tribunal as to jurisdiction is binding on the parties in the same proceedings, even though a later decision in a separate action may show that it was erroneous in law.
Robin Allen QC and Akua Reindorf (instructed by the Commission for Racial Equality) for the claimant.
Gavin Millar QC and Michael Ford (instructed by Thompsons) for the defendant.
The claimant had been a Labour party councillor in Birmingham. He was of Pakistani origin. He applied to become the party representative for 1998 but was not chosen; a white candidate being selected instead. The claimant complained to an employment tribunal that the Labour party had discriminated against him on racial grounds, contrary to RRA 1976, s 12(1).
The Labour party objected that s 12 did not apply to it, since it was not a “qualifying body” within the meaning of RRA 1976. The employment tribunal ruled as a preliminary issue that the party was a qualifying body. In the meantime the claimant had brought two further complaints under s 12(1).
The Labour party appealed unsuccessfully to the Employment Appeal Tribunal (EAT) on the preliminary issue. It obtained permission to appeal to the Court of Appeal but did not in the event do so. In separate proceedings, however (see McDonagh and Triesman v Ali [2002] EWCA Civ 93, [2002] All ER (D) 87 (Feb)), the Court of Appeal did rule that the Labour party was not a qualifying body under s 12. The defendant therefore invited the tribunal to dismiss the claimant’s complaints on the ground that, following McDonagh v Ali, the tribunal was bound to find that it lacked jurisdiction. The tribunal held, however, that it was still bound by the unappealed decision of the EAT earlier in the proceedings. On the merits, it found for the claimant on all three complaints.
Subsequently the Court of Appeal ruled that its decision in McDonagh v Ali should have precluded the employment tribunal from finding jurisdiction to hear complaints against the Labour party under
s 12. It also considered that the complaints should have failed on the merits. The claimant appealed.
LORD HOFFMANN:
Logically the first question was whether or not the Labour party was a qualifying body for the purposes of s 12. For the reasons given in McDonagh v Ali, it was not. The notion of an “authorisation or qualification” suggested some kind of objective standard which the qualifying body applied, an even-handed, not to say “transparent”, test which people might pass or fail. But that was far removed from the basis upon which a political party chose its candidates. The main criterion was likely to be the popularity of the candidate with the voters, which was unlikely to be based on the most objective criteria.
That did not mean that a political party was entitled to discriminate on racial grounds in choosing its candidates. But the relevant prohibition was to be found, not in s 12, but in s 25, which dealt with discrimination by associations against members or prospective members.
It followed that the EAT was wrong to hold that the Labour party was a qualifying body within the meaning of s 12. But there had been no appeal against the EAT’s decision. So the question was whether, notwithstanding that it was wrong in law, the decision remained binding upon the parties.
Issue estoppel arose when a court of competent jurisdiction had determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties. The question was therefore whether or not the EAT was a court of competent jurisdiction to determine whether the Labour party was a qualifying body within the meaning of s 12.
Decisions of fact or law
There was no basis for distinguishing between questions which went to the tribunal’s jurisdiction and those which did not. A decision that a contract fell outside the jurisdiction of the tribunal because it was for services, or for service overseas, was just as much a question which went to the jurisdiction, as the question of whether the Labour party was within the jurisdiction because it was a qualifying body. Both were decisions of fact or law, which were (subject to appeal on questions of law) within the competence of the tribunal.
Accordingly, the decision that the Labour party was a qualifying body for the purposes of s 12 was made by a competent court and was therefore binding upon the parties. It did not matter that a later decision had shown that it was erroneous in law. The whole point of an issue estoppel on a question of law was that the parties remained bound by an erroneous decision.
The purpose of the estoppel was to work justice between the parties. In this case, it would be unjust if the issue estoppel did not apply to the second and third applications. Although the Labour party knew that it had given notice of appeal in McDonagh v Ali, it made no attempt to obtain an extension of its time for appealing in this case. Instead, it involved the claimant in a lengthy and expensive hearing, during which the merits of all three applications were examined. It would be quite unfair for the claimant now to be told that he had to start again in the county court.
The Labour party was therefore estopped from challenging the ruling that it was a qualifying body and was not entitled to discriminate on racial grounds in its choice of candidates for the council election. The tribunal found that it had done so.
His lordship went on to consider the merits and held that the claimant had suffered unlawful discrimination.
The appeal would therefore be allowed.
Lord Rodger, Lord Walker, Lord Carswell and Lord Brown delivered concurring opinions.