Unison Opinion 13 10 2021.pdf - #TimeForRealChange in UNISON

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Re: UNISON and Certain Resolutions adopted by the NEC on 6th October 2021 O P I N I O N 1. I am asked by the Presidential Team on behalf of the National Executive Council (‘NEC’) of UNISON to give an Opinion to UNISON on the lawfulness of six resolutions of the NEC which were passed on 6 October of this year. It is alleged that four of these are unlawful because they are said to be in breach of the Rules of UNISON or otherwise ultra vires (beyond the powers of) the NEC. I have been provided with a copy of the Rules of UNISON which bear the date 2019 and on the cover page of which is stated ‘as amended at the 2019 conference’. So far as I can see, this appears to be the latest version of the Rules on the union’s website. I have also been provided with a copy of the six motions which I understand to have been passed by a majority, unamended. I have also been given a copy of what purports to be a written Advice by junior counsel, Stuart Brittenden, dated 5 October 2021 and entitled: ‘NEC Meeting 6 October 2021: Proposed Resolutions’. Finally, I have been provided with an NEC report of 25 May 2001 relating to disciplinary procedures within the union. 1 Summary 2. For the reasons which I set out below, none of the six resolutions adopted by the NEC on 6 October is in breach of rule, ultra vires, or otherwise unlawful. Legal principles relating to union rules 3. The law on union rules is well established. I will summarise the general principles. The rules of a trade union constitute an enforceable contract between it and its members: Yorkshire Miners’ Association v Howden [1905] AC 256; a proposition more recently restated in relation to similar unincorporated associations in Choudry v Triesman [2003] EWHC 1203 (Comm), Stanley Burnton J at [38], approved by the CA in Evangelou v McNicol [2016] EWCA Civ 817 at [19a]. The rules of a trade union can only be altered in accordance with whatever procedure is laid down by the rules for their alteration: Dawkins v Antrobus (1881) 17 Ch D 615 at 621. 4. The correct approach to the construction (i.e. the interpretation) of union rules is set out in an often-cited passage in a speech of Lord Wilberforce in Heaton's Transport (St Helens) Ltd v Transport and General Workers Union [1972] IRLR 25 at p.28, where he said of the contract of membership: 'The basic terms of that agreement are to be found in the union's rule book. But trade union rule books are not drafted by parliamentary draftsmen. Courts of law must resist the temptation to construe them as if they were, for that is not how they would be understood by the members who are the parties to the agreement of which the terms or some of them, are set out in the rule book, nor how they would be, and in fact were, understood by the experienced members of the court. Furthermore, it is not to be assumed, as in the case of a commercial contract which has been reduced into writing, that all the terms of the agreement are to be found in the rule book alone: particularly as respects the discretion conferred by the members upon committees or officials of the union as to the way in which they may act on the union's behalf. What the members understand as to the characteristics of the agreement into which they enter by joining a union is well stated in the section of the TUC Handbook on the 2 Industrial Relations Act which gives advice on the content and operation of the union's rules. Paragraph 99 reads as follows: “Trade union government does not however rely solely on what is written down in the rule book. It also depends upon custom and practice, by procedures which have developed over the years and which, although well understood by those who operate them, are not formally set out in the rules. Custom and practice may operate either by modifying a union's rules as they operate in practice, or by compensating for the absence of formal rules. Furthermore the procedures which custom and practice lay down very often vary from workplace to workplace within the same industry, and even within different branches in the same union.”” 5. That passage was cited and approved in Porter v National Union of Journalists [1980] IRLR 404 (HL).1 Lord Dilhorne held in that case (at p.410): 'In construing these rules I adhere to what I said in British Actors' Equity Association v Goring (1978) ICR 791, namely that different canons of construction to those applied to any written document are not to be applied to the rules of a union. I regard it as our task to construe them so as to give them a reasonable interpretation which accords with what in our opinion must have been intended. The more imprecise the language the greater may be the difficulty in deciding what was intended. I agree with my noble and learned friend Lord Wilberforce that the rules must not be construed as though drafted by parliamentary draftsmen and that custom and practice may operate to moderate a union's rules as they operate in practice. (See Heaton's Transport v Transport and General Workers Union [1972] IRLR 25.) But custom and practice, while it may moderate the operation of a rule, cannot in my opinion entitle a union to act in conflict with it.' 6. As Vinelott J put it in considering that passage in Taylor v National Union of Mineworkers (Derbyshire Area) [1985] IRLR 99 at [33]:2 In particular the rules govern a continuing body with a fluctuating membership. Custom and practice at a particular moment must be borne in mind in construing the rules and seeing what is to be implied in them. But if the rules are clear, custom and practice cannot be given effect if they conflict with the rules. 1 In which I appeared. 2 In which I appeared. 3 7. These principles of construction have been applied in many cases since (e.g. Jacques v AUEW (Engineering Section) [1986] ICR 683 at 692). In Wise v USDAW [1996] I.C.R. 6913 at 705 Chadwick J reviewed the authorities and held: The effect of the authorities may, I think, be summarised by saying that the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the court's view they must have been intended to mean, bearing in mind their authorship, their purpose, and the readership to which they are addressed. 8. Sir Andrew Morritt, VC, in Re National Union of Rail, Maritime and Transport Workers, AB v CD [2001] IRLR 8084 at [29] elaborated the point about custom and practice: If it is asserted that custom or practice warrants the implication of a term into a contract then, in principle, it must be known to or readily ascertainable by all the parties to the contract. Sagar v Ridehalgh [1931] 1 Ch 310 is an example of the extent of the knowledge or notoriety required. A custom or practice alleged to justify an implication into the contract between all the members of the union and the union itself must, therefore, be known to or readily ascertainable by all the members, not only those concerned with the [issue under consideration]. 9. Of course, terms can be implied on the other familiar but limited contractual bases for doing so, such as to avoid the contract being unworkable, see AB v CD at [29] or by reason of necessity to give effect to the presumed intention of the parties (and see McVitae v UNISON 1996 IRLR 33, ChD). In UNISON v Street [2013] 11 WLUK 810, the EAT held that the NEC had, by necessary implication, the power to suspend a branch so as to give effect to the regional supervision of branches permitted under the then rules, so long as such suspension was both a necessary and a proportionate way of achieving the ends which regional supervision was intended to achieve. It is to be noted that AB v CD was not cited and counsel appeared on only one side. It is clear, however, that no term can be implied to override an express rule: Taylor v National Union of Mineworkers (Derbyshire Area) [1985] IRLR 99.5 3 In which I appeared. 4 In which I appeared. 5 In which I appeared. 4 10. In relation to those rules of UNISON which I am considering, no implied terms have been suggested or appear warranted and thus my consideration is confined to the express rules of the union. 11. The above canons of construction applicable to the rules of trade unions sit easily with the general principles of contractual construction relatively recently restated by the Supreme Court in Wood v Capita Insurance Services Ltd [2017] [2017] UKSC 24; [2017] A.C. 1173 at [10]-[15]. UNISON’s Rules 12. The Rules governing the union appear to have been last amended in 2019. The Rules of a union set out its constitution and provide for the governance of the union and the powers and duties of the various committees and post holders permitted to take decisions or act on behalf of the union. There is no other source of such powers and duties except, of course, the obligations contained in UK law on trade unions primarily contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the 1992 Act’) and in case law but also in other laws of more general application which affect trade unions as well as other people and organisations (such as the criminal law, equality law, the law of trusts and so on). 13. UNISON’s Rules provide that they may only be amended by a two thirds majority at a National Delegate Conference (Rule N.1): see the reference to Dawkins v Antrobus above. The NEC, however, has the power ‘to augment the Rules by making regulations subject to their approval by Annual Conference’ (Rule D.2.11.2); the power ‘to provide for any case in which the Rules are silent’ (Rule D.2.11.1) and the power to ‘interpret the Rules in event of doubt, conflict or dispute’ (Rule D.2.11.3). In fact, the NEC’s power of interpretation is broader still since Rule A.2.2 provides that: In the event of any question arising as to the interpretation of these rules, the question shall be referred to the National Executive Council, whose decision shall be conclusive and binding. 14. Similar (though usually more limited) NEC powers are to be found in most union Rulebooks. It is to be noted that in UNISON they are exclusive to the NEC. Neither the General Secretary nor any other member of staff is given the power 5 to give a binding interpretation of the Rules. In fact, of course, it is the courts which are the final arbiters of interpretation but the conferment of such powers exclusively on the NEC is a significant indicator of the NEC’s constitutional status in the union. Any reasonable interpretation of the rules given by the NEC will thus be given due deference should the issue subsequently come before a court. It is to be noted that the NEC also has the power to ‘issue a protocol on … union governance’. (Rule D.2.11.5). Power in the union 15. By Rule D.1, the supreme government of UNISON is vested in the National Delegate Conference which is to meet annually, though the NEC has the power to convene a Special Delegate Conference (Rule D.1.2.1 and D.2.11.9). On a requisition by 25% of the union’s 1.25 million members, the General Secretary must convene a Special Delegate Conference (Rule D.1.2.2). 16. Between National Delegate Meetings, the NEC directs UNISON. Rule D.2.1 materially reads as follows. The general management and control of the Union between National Delegate Conferences shall be vested in the National Executive Council, … . It shall have full power and authority to act on behalf of the Union in every respect and for every purpose falling within the objects of the Union. It shall not do anything that is inconsistent with these Rules or the policy of the Union as laid down by the National Delegate Conference. 17. Without detracting from those general powers under Rule D.2.1, Rule D.2.11 confirms that the NEC has certain particular powers. I set out some of the material provisions of that Rule: 2.11 POWERS As part of its general power in Rule D.2.1 above, and without limiting the scope of that power, the National Executive Council shall have the following powers: 2.11.1 to provide for any case in which the Rules are silent; 2.11.2 to augment the Rules by making regulations subject to their approval by Annual Conference; 2.11.3 to interpret the Rules in event of doubt, conflict or dispute; 2.11.4 to bring or defend legal proceedings of any type; 2.11.5 to issue a protocol on devolved administration and union governance; 2.11.6 to give directions to the Trustees of the Union as to their management of the funds and property of the Union, including the power to give directions binding on the Trustees that, in the execution of any investment policy, the Trustees should have regard to considerations of Union policy irrespective of conflict with possible financial return; … 6 2.11.9 to convene meetings, and in particular Delegate Conference meetings, if it should appear to the National Executive Council that there is a need; 2.11.10to open or close any branch of the Union following consultation with the appropriate Regional Council, Service Group, branch or branches; … 2.11.15 to take all such action as shall seem to them to be necessary to ensure that the income, property and funds of the Union are safeguarded, and the objects and purposes of the Union achieved. 18. In relation to Rules D.2.11.1-3 it is also to be observed, as I have noted above, that Rule A.2.2 further provides: In the event of any question arising as to the interpretation of these rules, the question shall be referred to the National Executive Council, whose decision shall be conclusive and binding. 19. The NEC may appoint committees from its members and delegate its powers to them. This is provided for by Rule D.2.9 which states: 2.9 COMMITTEES The National Executive Council shall have the right to appoint such Committees from amongst its membership as it shall see fit, and shall have the power to delegate to such Committees any of its functions as it considers appropriate. 20. The NEC is also responsible for staffing the union, and the General Secretary is responsible to the NEC for all staff matters other than those which the NEC have determined. This is set out in Rule 12 which provides: 2.12 EMPLOYMENT OF STAFF 2.12.1 The National Executive Council (or the General Secretary acting on its behalf) shall have the power to engage or dismiss such staff as may be required for the conduct of the business of the Union. 2.12.2 The National Executive Council shall determine the pay and conditions of service of staff. The General Secretary shall be responsible to the National Executive Council for all remaining staffing matters. 21. The NEC has a number of other specific powers which it is not necessary here to rehearse in full. An example is the establishment of branches in accordance with a scheme approved by the NEC (Rule G1.2). Two particular powers should be set out here since they are relevant to later discussion. 22. The NEC has the power to investigate disciplinary complaints against members under Rule I.5.1.2, a power which the NEC may delegate to the General Secretary. Rule I.5.3 provides that: 5.3 In any case, the body on whose behalf an investigation is undertaken shall consider the result of such investigation before deciding whether or not a charge should be brought. 7 23. Only Branches and the NEC may decide to charge a member (Rule I.6) and only those bodies may determine disciplinary hearings. Their respective jurisdictions are delineated. The NEC has power to impose various penalties (after a disciplinary hearing in accordance with Schedule D) including suspension and expulsion under Rule I.8. Branches have lesser powers of penalisation. 24. An NEC report of 25 May 2001 sets out what I assume to be the NEC’s then resolution (presumably exercising its above powers to determine issues on which the Rules are silent and to issue a protocol on governance) as to the process for dealing with complaints against members which may result in disciplinary action. It provides that where ‘reasonable grounds’ for investigation are presented to the relevant member of staff (then the Head of Constitutional Matters), that officer will seek authority for a disciplinary investigation from the Chair of the NEC’s Development and Organisation Committee (the ‘D&O Committee’, which I take to be the successor in title to the Disciplinary Committee referred to in the Rules). Such authorisation is to be based upon the Requirements of Rule I and any supporting case papers. In the absence of the Chair and Vice-Chair of the Committee, and in ‘exceptional circumstances’, authorisation may be given by the President or Vice-Presidents. The report of any such authorised investigation must be ‘reported back to the NEC for consideration of whether or not charges are brought based upon a prima facie case being established.’ Such a report is not in fact provided to the NEC in case of prejudice against the member, (i.e. presumably because, by reading it, the members of the NEC might prejudge any subsequent hearing in which they might be called upon to participate). Presumably, however such reports are disclosed to the D&O Committee (or its Chair or Vice-Chair) exercising delegated powers. Otherwise, if the NEC (or its delegated Committee, Chair or Vice-Chair) did not review the investigation report, the NEC would have no proper basis on which to discharge its function (through its delegates) under Rules I.5.3 and I.6 of deciding whether the member should be charged. So long as the D&O Committee members did not subsequently sit on a disciplinary hearing in relation to the member concerned, prejudice would be avoided but the NEC would have been enabled to fulfil its rulebook duty. 8 25. The Report points out that if the NEC decides to lay a charge (‘subject to the NEC’s approval’), it is heard by a Disciplinary Panel. If the charge is upheld, this is to be reported to the NEC. The 2001 NEC Report thus confirms the NEC’s powers in relation to discipline. 26. The Rules provide that NEC (and only the NEC) has power to suspend a member pending investigation or hearing (often referred to in employment law as ‘administrative suspension’) under Rule C.7.4. For the reasons discussed above, this power will be delegated to the D&O committee. Rule C.7.4 reads: 7.4 SUSPENSION 7.4.1 The National Executive Council shall have the power in exceptional circumstances to suspend a member from office for a period of not more than 60 days (unless such a period is extended by agreement between the parties) if the member faces disciplinary charges under Rule I and the National Executive Council considers it appropriate in the interests of her or his branch or of the Union generally that she/he should be suspended until the charges are determined. 7.4.2 In cases of alleged financial irregularities brought under Rule I and the member faces disciplinary charges related to such allegations arising from a Rule I investigation, the National Executive Council may suspend the member(s) from holding office until the conclusion of the disciplinary investigation, hearing or appeal. 27. In relation to Rule C.7.4.2, there is a list of disciplinary offences in Rule I.2. The offence dealing with ‘financial irregularity’ is presumably Rule I.2.4 which makes it an offence if a member: 2.4 misappropriates any money or property belonging to the Union which is under her or his control, or fails properly to account for money which was, is or should be under her or his control or defrauds the Union in any way. 28. It is possible that some other kind of financial irregularity could be relevant to justify suspension under Rule C.7.4.2, for example, some act in relation to union money or assets ‘in a manner prejudicial or detrimental to the Union, her/his branch, Region or Service Group’ but that would be a matter for the NEC to determine pursuant to its powers to construe the Rules. In Radford v National Society of Operative Printers, Graphical and Media Personnel [1972] ICR 484, ChD the Court found that where union rules expressly stated the grounds on which a member could lose his or her membership, there was no room to imply an additional ground. 9 29. Rule K deals with legal assistance provided by the union to its members and under Rule K.1.1 the NEC (and only the NEC) has the power ‘in its absolute discretion’ to grant legal assistance to members in respect to work related matters, ‘union duties’ and ‘in exceptional circumstances any other matter’ (Rule K.1.1(ii)). Rule K.1.3 refers to ‘legal assistance provided by a solicitor and/or counsel instructed by the Union’. In all cases the NEC ‘has absolute discretion as to whether or not to grant, continue or withdraw legal assistance’ a discretion which it may delegate to a Committee or lay or full-time officer of the union (Rule K.1.6). 30. The General Secretary too has certain specific powers. Rule E.3.1 says that the General Secretary is the principal officer of the union and Rule E.3.1 provides that the General Secretary has the right to attend and speak at National Delegate Conference (see also Rule D.1.7.2), NEC and other specified meetings. Significantly, the General Secretary is not entitled to vote. By Rule D.1.7.2 the General Secretary has the power, like the NEC, to specify staff who may speak (but not vote) at National Delegate Conferences; but the General Secretary does not have such a power in relation to NEC meetings. Rule E.3.1 continues: The General Secretary shall have duties, rights, powers and responsibilities commensurate with the post of principal officer, as approved by the National Executive Council. The General Secretary shall act under the direction of the National Executive Council. 31. That provision is amplified by Rule D.2.13 which provides: 2.13 POWER TO ACT BETWEEN MEETINGS 2.13.1 The General Secretary shall have the power to act on behalf of the National Executive Council and its committees between meetings, where appropriate in consultation with the President or Chairperson of the relevant committee, and shall seek the endorsement of the National Executive Council or committee upon any exercise of that power. 32. The Rules also provide for a President and two Vice-Presidents (Rules E.1 and E.2). These are elected by the NEC (Rule E.2.4). Their powers and duties are not specified save that the President is to chair meetings of the NEC and National Delegate Conference, a function which is to be fulfilled by the Vice-Presidents in the absence of the President. I understand that there has been a practice that the President and Vice-Presidents together are referred to as the ‘Presidential Team’ 10 and usually carry out various activities (the full identification of which is not known to me) between NEC meetings. Whether this practice is sufficient to amount to a ‘custom and practice’ so as to found an implied UNISON rule (in accordance with the dicta from AB v CD, above) is doubtful since it would be unlikely to be known to every member. The resolutions of the NEC of 6 October 2021 and the legal advice upon them 33. It is convenient to consider one by one each of the resolutions and the legal advice provided by Stuart Brittenden on each. The resolutions commence with a ‘preamble’ which I do not understand to have been voted upon and is therefore not a resolution. However, junior counsel has advised upon it and his flawed analysis of it is significant. The preamble 34. The preamble reads as follows: The NEC reminds itself that under Rule 2.1 ‘the management and control of the union between National Delegate Conferences shall be vested in the NEC’ with ‘full power and authority to act on behalf of the Union in every respect and for every purpose falling within the objects of the Union.’ This is a member-led union and the role of the staff is to carry out the lawful instructions of the NEC. This protocol is designed to assist in ensuring that the decisions of the NEC and of those to whom the NEC has delegated its powers are carried out efficiently and promptly The NEC reminds itself that under Rule 2.1 ‘the management and control of the union between National Delegate Conferences shall be vested in the NEC’ with ‘full power and authority to act on behalf of the Union in every respect and for every purpose falling within the objects of the Union.’ This is a member-led union and the role of the staff is to carry out the lawful instructions of the NEC. This protocol is designed to assist in ensuring that the decisions of the NEC and of those to whom the NEC has delegated its powers are carried out efficiently and promptly. 35. The legal advice provided by Stuart Brittenden starts by pointing out that he was instructed to provide ‘urgent advice’. It is to be assumed that the advice was commissioned by senior staff working to the General Secretary and that the instructions to junior counsel were given by the Unison Legal Department. It is not clear when he was instructed but the advice is dated the 5 October, the day before the NEC on 6 October. It was provided to members of the NEC on the morning of 6 October and I understand that the Presidential Team had it the evening before. It was evidently drafted hurriedly. As he says: ‘In the limited time available, I set out my advice in headline terms. I can provide further in-depth 11 analysis if this is required.’ Unfortunately, in his haste junior counsel has omitted reference to various relevant rules and parts of the resolutions. It is unclear why Mr Brittenden was put under such pressure of time since the motions which became the resolutions of the NEC were available to the General Secretary, I understand, several days earlier (and were discussed with the General Secretary and then included on the agenda). In relation to the preamble, junior counsel’s advice is as follows: 3. The Preamble: I am concerned that the Preamble is misleading because it incorrectly summarises the NEC’s powers under Rule D2.1. It is manifestly misleading because it does not make any reference to two fundamental limitations. The NEC’s powers are expressly limited to: (i) the requirement that it must act “within the Objects”; and (ii) further, “it shall not do anything that is inconsistent with the Rules”. 4. It is important to emphasise that the NEC has no power or authority to pass a resolution which is in breach of the Rules or UNISON’s constitutional Objects set out in the Rulebook. The only way in which the Rules can be altered is in accordance with Rule N. The National Delegate Conference is the only democratic body which has standing to make Rulebook changes. 36. The basis on which junior counsel asserts that the preamble is ‘manifestly misleading’ is not well founded, perhaps through reasons of haste. The first ground on which his allegation is founded is ‘manifestly’ false. He asserts that the preamble does not make any reference to the requirement in Rule D.2.1 that the NEC must act ‘within the Objects’. Junior counsel has overlooked the words of the preamble. It cites the very words which he alleges were not mentioned! It states in terms that the NEC has: ‘full power and authority to act on behalf of the Union in every respect and for every purpose falling within the objects of the Union’ (emphasis supplied). Regrettably, his advice contains other errors. 37. Junior counsel’s other basis for the allegation the preamble is ‘manifestly misleading’ is that it does not expressly mention that part of the Rule which says that the NEC shall not do anything inconsistent with the Rules. It might be thought that this was a self-evident proposition, particularly in the context of a preamble and series of motions each claiming to be founded on the provisions of specified Rules. Furthermore, there is nothing whatever in the preamble which he suggests to be (or is) inconsistent with the Rules. 12 38. Junior counsel is, of course, correct to point out that the NEC has no power to pass a resolution in breach of Unison’s Rules or objects and that the Rules can only be altered in accordance with Rule N by the National Delegate Conference. But he makes significant omissions in relation to the Rules relevant to this point. He fails to point out that: a. by Rule A.2.2, any question arising as to the interpretation of the rules shall be referred to the National Executive Council, whose decision shall be conclusive and binding; b. by Rule 2.11.1 the NEC has power to provide for any case in which the Rules are silent; c. by Rule D.2.11.2 the NEC has the power to augment the Rules by making regulations subject to the approval of the National Delegate Conference; d. by Rule D.2.11.3 the NEC has the power to interpret the Rules in the event of doubt, conflict or dispute. 39. All this begs the question as to whether the resolutions break any existing rules. Junior counsel asserts: ‘The proposed resolutions: Resolutions 2, 3, 5 and 6 are plainly in breach of the Rulebook.’ For the reasons I set out below, junior counsel is in error on each point. Resolution 1 40. The first resolution provides as follows: Resolution 1: Pursuant to Rules D.2.1, D.2.8, and D.2.11.9 the NEC resolves to convene every other month and that the current cycle of Committee meetings will continue as at present but with each Committee reporting to the next NEC meeting. 41. Junior counsel advises that: Rule D2.8 provides that the NEC shall meet “at least four times a year”. The NEC is permitted to meet at more frequent intervals. This resolution can be considered by the NEC. 42. No more therefore needs to be said about this other than to note it. Resolution 2 43. This resolution provides: Pursuant to Rules D.2.1 and D.2.9 the NEC appoints a Committee consisting of the President and Vice-Presidents (the quorum for which shall be two) to be 13 known as ‘the Presidential Team’ to which it delegates, between meetings of the NEC, the NEC’s powers (including the power to direct the General Secretary from time to time as may be necessary pursuant to Rules D.2.13.1 and E.3.1) other than powers it has delegated to the Development and Organisation Committee. The Presidential Team shall seek the endorsement of the next NEC meeting for any such exercise of its delegated powers. 44. Junior counsel’s advice on this is: Resolution 2 (delegation of powers in between meetings): This resolution is definitely in breach of multiple Rulebook provisions. It seeks to override Rule D2.13.1 which already makes express provision in respect of the “power to act between meetings”. The General Secretary has exclusive authority under Rule to act in between meetings. Rule D2.13.1 is also framed in mandatory terms – the General Secretary “shall” discharge these functions (and no one else). It also breaches Rule E3.1 in seeking to divest authority delegated to the General Secretary. It would also amount to a fundamental breach of her contract of employment and is unlawful. 45. The first point to note about this advice is that junior counsel does not contest the NEC’s power to appoint a committee consisting of the Presidential Team. He has evidently taken on board at least the first part of Rule D.2.9. 46. Nor, secondly, does junior counsel challenge the NEC’s power to delegate its functions to a Committee consisting of the Presidential Team. I am informed that the Presidential Team has indeed had delegated to it various functions over the years though that is not reflected by an express rule. Though such a custom and practice is unlikely to have satisfied the tests for an implied term (see above) it is not inconsistent with any Rule and thus the NEC was warranted in formalising such a delegation of powers by this resolution by reference to (at least) Rules A.2.2 or D.2.11.1, as mentioned above. 47. But no power needs to be implied. Junior counsel’s objection appears to be, not that the NEC is formally delegating its powers to the Presidential Team between NEC meetings but that the delegation overrides an exclusive power given to the General Secretary by the Rules. This analysis is flawed and appears to be founded on a failure to consider certain Rules. 48. In the first place, junior counsel does not mention the second part of Rule D.2.9 which explicitly gives the NEC the power to delegate to a committee it has appointed, ‘any of its functions as it considers appropriate’. 14 49. One of the NEC’s functions is precisely that of directing the General Secretary, as Rule E.3.1 states unambiguously in its last sentence: ‘The General Secretary shall act under the direction of the National Executive Council.’ Junior counsel refers to Rule E.3.1 but fails to mention this crucial part of it. Having apparently overlooked it he is not in a position to offer any explanation as to why it does not mean what it says. 50. I have no hesitation in concluding that the NEC resolution thus, perfectly consistently with the Rules, delegates its powers to the Presidential Team, including its power to direct the General Secretary. 51. As can be seen, junior counsel seeks to argue that the NEC cannot delegate power to ‘act between NEC meetings’ because such power is exclusively in the hands of the General Secretary and cannot be exercised by anyone else (including, presumably, the NEC) by reason of Rule D.2.13.1 (set out above). Junior counsel’s assertion that ‘the General Secretary has exclusive authority under Rule to act in between [NEC] meetings’ is without merit. The assertion ignores yet another Rule, Rule D.2.1. This, as I have pointed out, provides that ‘the general management and control of the union’ is vested in the NEC between NDC meetings and that the NEC ‘shall have full power and authority to act on behalf of the union in every respect and for every purpose’ (consistently with the Rules). Furthermore Rule D.2.11.15 (as I have mentioned) imposes on the NEC the duty: To take all such action as shall seem to them to be necessary to ensure that the income, property and funds of the Union are safeguarded, and the objects and purposes of the Union achieved. 52. These provisions clearly encompass the power to direct the General Secretary between meetings of the NEC. The NEC’s powers are unlimited save that they must be consistent with the Rules, the Objects of the union and the policies of the National Delegate Conference. The proposition that these NEC powers (subject only to the NDC) evaporate when the NEC is not sitting and are then substituted by an untrammelled autonomous power on the part of the General Secretary to act - regardless of the decisions or wishes of the NEC - is untenable. There can be no doubt that the NEC, and hence a committee appointed by it and to which it 15 has delegated full power, has the authority under the Rules to direct the General Secretary, from time to time as may be necessary (as the resolution provides), to undertake actions whilst the NEC is not sitting. To read the Rules otherwise invokes the nonsensical proposition that the NEC only has authority over the General Secretary when it is in session. I have no doubt that in usual course the General Secretary loyally carries out the decisions of the NEC and any express instructions in between its meetings. If the duty of the NEC to manage and control the union between meetings of the National Delegate Conference (and its multiple powers to do so) were confined to being exercised only during the actual hours it was in session, the governance of the union would be rendered unworkable. 53. Having ignored Rule D.2.1 and Rule D.2.11.15, junior counsel relies on Rule D.2.13.1 for his argument. I have set it out above and for convenience I set it out again: The General Secretary shall have the power to act on behalf of the National Executive Council and its committees between meetings, where appropriate in consultation with the President or Chairperson of the relevant committee, and shall seek the endorsement of the National Executive Council or committee upon any exercise of that power. 54. Junior counsel suggests that it is framed in mandatory terms and claims that it provides that ‘the General Secretary “shall” discharge the function of acting between NEC meetings ‘and no-one else’. Examination of the Rule shows that the rule is not mandatory, compelling the General Secretary and no-one else to act between NEC meetings. Instead, it confers a power on the General Secretary; that the latter ‘shall have the power to act on behalf of the NEC and its committees’ between meetings. It is perhaps too obvious to need elaboration, but in the light of junior counsel’s advice which omits the phrase ‘the power to act on behalf of the NEC’ it must be said that that power is incapable (on any sensible reading) of excluding the power of the NEC to direct the General Secretary how to act on its behalf. Nor does that power confer authority on the General Secretary to ignore such a direction of the NEC. The fact that the Rule goes on expressly to state that the power is to be subject to the endorsement of the NEC reinforces the point: the NEC is unlikely to endorse an act done by the General Secretary purportedly on its behalf but against an express direction not to do the act. 16 55. To summarise: the Rules under consideration make it clear that the exercise of the General Secretary’s power to act between NEC meetings is subject to a number of limitations: a. it is only a ‘power’ and not a mandatory command; b. the General Secretary’s acts must be done ‘on behalf of the NEC and its committees’ and hence in accordance with its instructions and policies; and c. in any event, the General Secretary, pursuant to Rule E.3.1 ‘shall act under the direction of the NEC’; d. the Rules cited by junior counsel do not purport to limit the powers of the NEC to direct the General Secretary and to direct the affairs of the union between NDC conferences. 56. Finally, junior counsel asserts that the resolution breaches Rule E3.1 in seeking to divest authority delegated to the General Secretary. He asserts that it would also amount to a fundamental breach of her contract of employment and is thus unlawful. 57. In relation to Rule E.3.1, which I will not set out again, the authorities delegated to the General Secretary under that Rule are those ‘commensurate with the post of principal officer, as approved by the [NEC]’. The concept of ‘principal officer’ is not defined in the Rules but clearly denotes that the General Secretary is the highest-ranking employee of the union. However, notwithstanding the General Secretary’s democratic mandate, the General Secretary is the servant of the union and it is, as I noted above, significant that the Rules have not conferred on the General Secretary a power to vote at NEC meetings nor do they provide, despite the right to attend and speak, that the General Secretary is a member of the NEC (the constituent members of which are exhaustively set out in Rule D.2.2-2.6). The General Secretary is the only employee entitled by the Rules to speak at the NEC, but decision-making is exclusively that of the NEC, to whom the membership have entrusted the direction of the union. 17 58. If it is said that some specific authority has been conferred on the General Secretary by the NEC which is breached by the resolution, junior counsel has not identified it. In fact, the resolution complies precisely with the Rule which, as I have repeatedly pointed out, specifically states that the ‘General Secretary shall act under the direction of the [NEC]’. Junior counsel’s assertion that the resolution breaches Rule E3.1 in seeking to divest authority delegated to the General Secretary is thus totally without merit. 59. As to the assertion that the NEC, in seeking to direct the General Secretary to carry out its instructions between meetings, would ‘amount to a fundamental breach of her contract of employment and is unlawful’, this too would appear to be unfounded. However, I have not seen the General Secretary’s contract of employment and cannot be definitive. It would, however, seem extraordinary if it were the case that the General Secretary’s contract of employment gave her the right to refuse to execute a direction of the NEC to carry out its instructions between meetings (or, having vested its powers in a committee, for the committee to give her a direction to be carried out between its meetings). If it were so the NEC would, in exercising its power to determine the General Secretary’s pay and conditions pursuant to Rule D.2.13.1, have negated the mandatory obligation under Rule E.3.1 that the General Secretary shall act under the direction of the NEC. Junior counsel does not refer to any specific provision of the contract of employment (express or implied) nor does he suggest that he has ever seen that contract. It seems much more likely that, on inspection, the contract provides that the General Secretary is to carry out the instructions of the NEC . 60. The assertion that the NEC has fundamentally breached the contract of the General Secretary is a serious one. If it is maintained then I advise that an independent firm of solicitors be instructed by the Presidential Team to provide an opinion on the matter. Clearly the instructions cannot come via the General Secretary herself or the legal department on whose instructions the allegation is made. 61. Resolution 2 is therefore lawful and junior counsel’s advice on it is wrong. 18 Resolution 3 62. This resolution provides as follows: Pursuant to Rule D.2.1, D.2.9 and D.2.11.15 the NEC directs the Presidential Team to instruct (through the Union’s legal department or such other solicitor as the Presidential Team thinks fit) counsel of the Presidential Team’s choice, at such a time and in such terms as the Presidential Team consider appropriate, to advise the NEC on any matter which the Presidential Team consider warrants such advice. 63. Junior counsel’s advice on this is as follows: Resolution 3 (legal advice): The NEC only has the power to bring or defend proceedings under Rule D2.11.4. It does not have the power to bypass UNISON Legal Department. The resolution seeks to bypass or remove responsibility from UNISON’s Legal Department to provide advice to UNISON. I understand that responsibility for providing legal advice has always rested with the Director/Head of Legal Services. To remove or reduce this responsibility will necessarily amount to a fundamental breach of their contract of employment and is unlawful. The resolution also cuts across a number of UNISON’s stated Objects: B2.4, B2.6 and B4.6. 64. Again junior counsel appears to have ignored both provisions of the Rules and of the resolution. 65. It is firstly important to note that this resolution is not said by junior counsel to breach any Rule. 66. The case he makes appears to be that the NEC has no power over legal matters other than the power to bring and defend legal proceedings under Rule D.2.11.3. That is not so, but in any event, it is inherent in the power to bring or defend legal proceedings that the NEC has power to take legal advice in relation to a risk of legal challenge by or against the union. That would be power enough to warrant resolution 3. 67. In fact, as noted above, the NEC is given power by Rule K.1.1 ‘in its absolute discretion’ to grant legal assistance to members in relation to (amongst other things) ‘union duties’ and ‘in exceptional circumstances’ other matters (Rule K.1.1(ii)). Clearly, the NEC can therefore grant legal assistance to itself, since all members of it are members of the union. A contrary proposition that the NEC 19 can only seek legal advice for members of the union who are not members of the NEC and that it cannot decide to seek legal advice in relation to its own acts or decisions would be utterly untenable. In any event, the resolution makes reference to the breadth of the NEC’s powers of governance under Rules D.2.1, D2.9 and D.2.11.15. All these are set out above but the latter is of particular aptness here in authorising the NEC ‘to take all such action as shall seem to them to be necessary to ensure that the income, property and funds of the Union are safeguarded, and the objects and purposes of the Union achieved’. Clearly it is legitimate for the NEC to instruct legal advice to be obtained if it considers it necessary for these purposes, and there is no suggestion that the resolution is to be used to obtain legal advice when it is not necessary for these purposes. It is self-evident that obtaining legal advice for the purposes of determining whether or not the acts or resolutions of the NEC or its committees are lawful (with the risk to the union’s funds if they are not) falls within this provision. One might have thought it obvious that the NEC has the power to seek an opinion from competent counsel of its choice. 68. Junior counsel’s objection seems founded on the proposition that the resolution bypasses or removes responsibility from UNISON’s Legal Department to provide advice to UNISON. But the only function the resolution imposes on the legal department is to instruct counsel. The legal department currently instructs external counsel when it sees fit. In the instant case for example, UNISON has instructed Mr Brittenden as external junior counsel to provide the advice under consideration. The resolution provides for the Presidential Team to choose counsel. This is an option open as a matter of course to clients instructing solicitor and counsel. This obviously does not exclude advice from the solicitor about the choice and implications thereof. The resolution does not bypass or remove the responsibility of UNISON’s legal department to provide such advice as it considers appropriate, as it has always done. 69. In the alternative the Resolution instructs the Presidential Team to instruct external solicitors if it thinks fit. This is clearly an alternative and (in accordance with Resolution 2) subject to endorsement of the NEC. It does not bypass the legal department but sensibly envisages a situation where the legal department 20 is not best placed to act. This is not new. In fact, the Rules expressly contemplate UNISON instructing external solicitors and counsel. There are instances where it would be inappropriate for a legal department to act, for instance where there is a conflict of interest which would prevent the department acting for professional or regulatory reasons (see below para 72 for instance), or where the legal department lacked expertise or resources. The union is known to instruct external solicitors to advise and represent it and to instruct counsel on its behalf Such arrangements do not usurp or displace the duty (or right) of the legal department to provide advice itself. Rule K.1.3 refers to ‘legal assistance provided by a solicitor and/or counsel instructed by the Union’. As noted above, in all cases the NEC ‘has absolute discretion as to whether or not to grant, continue or withdraw legal assistance’ a discretion which it may delegate to a Committee or lay or full-time officer of the union (Rule K.1.6). 70. In any event, as to the suggestion that the NEC does not have power to bypass the legal department, no Rule is cited to support this proposition and no legal argument sustains it. In the light of the Rules setting out the powers of the NEC, if the latter considers that it is necessary ‘to bypass’ the legal department, it most certainly has the power to do so. 71. Junior counsel asserts that the ‘responsibility for providing legal advice has always rested with the Director/Head of Legal Services.’ This is patently not the case and external lawyers are often instructed by UNISON. In any event, the fact that UNISON unsurprisingly go to their in-house lawyers first is irrelevant to the question as to whether the NEC has the power, should it wish to do so, to go elsewhere. 72. Junior counsel continues: ‘To remove or reduce this responsibility will necessarily amount to a fundamental breach of their contract of employment’. Again, I surmise that Junior counsel has not inspected the relevant contract of employment. I am told that the same argument was raised some weeks ago and that the Presidential Team accordingly sought sight of the provision in the contract which would allegedly be breached. Apparently, the contractual term has not been produced and there may be an inference that such a term does not 21 exist. It is quite impossible to see why it would be a breach (let alone a fundamental breach) of contract to instruct an in-house Director/Head of Legal Services to obtain expert counsel’s opinion on issues on which there is fundamental disagreement as to the powers of the NEC. As before, the assertion that the NEC has fundamentally breached the contract of the Legal Director is a serious one. If it is maintained, then external legal advice will be needed on it. 73. Finally, Junior counsel asserts that ‘The resolution also cuts across a number of UNISON’s stated Objects: B2.4, B2.6 and B4.6.’ The phrase ‘cuts across’ is not clear, I assume that junior counsel means ‘inconsistent’ or perhaps ‘in breach of’. But the resolution is neither inconsistent nor in breach of these Rules. 74. Rule B.2.4 is the objective of encouraging solidarity and effective working partnership between members, representatives, staff and others. It appears irrelevant to the resolution. 75. Rule B.2.6 is to foster good industrial relations and promote equal opportunities. It is likewise irrelevant. 76. Rule B.4.6 requires staff, representatives and members to be treated with dignity and respect. I see nothing undignified or disrespectful in the resolution. 77. Accordingly, junior counsel’s advice in relation to resolution 3 is without merit. The resolution is lawful and in accordance with the Rules. Resolution 4 78. This resolution provides that: Pursuant to Rules D.2.1, D.2.9 and the preamble to Schedule D, the NEC delegates to its Development and Organisation Committee all its powers in relation to disciplinary matters which are subject to Rule C.7.4, Rule I and Schedule D. That Committee shall seek the endorsement of the next NEC meeting for any such exercise of its delegated powers. 79. Junior counsel has advised that: Resolution 4 (delegation of disciplinary powers and suspensions to D&O): There is nothing in principle objectionable about this resolution. However, it 22 may be said to be unnecessary because it duplicates the NEC’s Resolution in 2001 which covers identical ground to Resolution 4. 80. No further discussion is required. Resolution 5 81. This resolution provides: Pursuant to Rule A.2, D.2.1, D.2.11.1, D.2.11.2, D.2.11.3 and Rule C.7.4, the NEC rules that Rule C.7.4 gives jurisdiction to the NEC (and the Development and Organisation Committee exercising its delegated powers) the duty to consider the suspension of any member or branch suspended for more than 4 weeks where such suspension has not been considered by the NEC or the Development and Organisation Committee in the last 4 weeks and, as it thinks fit, remove or continue the suspension. 82. Junior counsel’s advice is: Resolution 5 (suspensions): This resolution is in clear conflict with Rule C7.4.2. In addition, the resolution seeks to allow the NEC to consider suspensions. This necessarily gives rise to a breach of natural justice for the reasons carefully set out in the 2001 Resolution. This gives rise to a risk of legal challenge. 83. The assertion that resolution 5 is in clear conflict with Rule C7.4.2 and in addition seeks to permit the NEC to consider suspensions is based on a mistaken reading of the resolution and of the Rules. The resolution, when carefully read, does not confer power on the NEC to deal with suspensions. It is Rule C.7.4.2 itself which confers that power on the NEC. The Rule states in terms that ‘the National Executive Council may suspend the member(s) from holding office’ pending disciplinary proceedings. 84. Rule C.7.4.1 also places the same power in the hands of the NEC, yet junior counsel makes no mention of this Rule at all. 85. The risk of a breach of natural justice inherent in Rules C.7.4.1 and 2 has, of course, been addressed by resolution 4 to which – very properly - no objection has been taken. Resolution 4, it will be recalled, delegated the NEC’s disciplinary powers to the D&O committee. As junior counsel noted, this delegation formalised existing practice, the purpose being primarily to uphold the rules of natural justice so as to ensure that the merits of a suspension, a disciplinary 23 hearing and an appeal can each be dealt with by differently composed panels, the members of which have had no earlier dealings with the case. 86. The purpose of resolution 5 is explicitly quite different. It is to clarify the extent of the power in relation to suspensions, in particular the power on the part of the Committee delegated by the NEC to remove or continue suspension pending disciplinary process and ensure that suspensions pending disciplinary proceedings are regularly reviewed and, if necessary, revoked. This is the practice in employment cases (see ACAS Guide to Discipline and Grievances at Work, 2019). Very properly junior counsel finds no objection to that particular clarification. 87. For these reasons, junior counsel’s assertion that resolution 5 ‘necessarily gives rise to a breach of natural justice’ is without merit. Resolution 6 88. This resolution provides: Pursuant to Rules C.2.4, C.7.1.1, D.2.1 and D.2.2.4, the NEC directs that any member holding elected office within the Union or holding an elected seat on a Committee of the Union who is dismissed by their employer shall, on notifying the General Secretary within one month of such dismissal, continue to be a member of the union from the date of dismissal until such time as the NEC decides otherwise or the member resigns from the union, and whilst such a member shall be entitled to hold office in the union and, in particular, shall continue to hold every office and sit on every Committee in the union to which they have been elected or appointed for the remainder of the term of such office or seat, unless and until the NEC decides otherwise or the member resigns from such office or seat. 89. Junior counsel’s advice is as follows: Resolution 6 (dismissed member continuing to hold office): this is ultra vires, in breach of multiple Rules, and amounts to a variation of the Rulebook outside of the National Delegate Conference as provided for in Rule N. It is clearly in breach of the following Rules: C2.4.1; C2.4.2, C7.1; C7.4.2; D2.2.2; M1.2.1(d) and, depending upon the facts, UNISON’s stated Objects. 90. I disagree. I can identify no breach of any of the Rules cited by junior counsel; resolution 6 is entirely consistent with them. I will address them seriatim. 24 91. Rule C.2.4.1 allows dismissed members to preserve their membership of the union despite no longer being employees in the relevant sectors (per Rule C.1). Rule C.2.4.2 bars unemployed members from holding office ‘unless otherwise decided by the NEC’. By resolution 6 the NEC is deciding otherwise. 92. Junior counsel does not explain the basis on which resolution 6 breaches these two provisions (which appear to validate it). 93. Rule C.7.1 provides that a member who ceases to be eligible for membership within Rule C.1 and who is not, for example, an unemployed member under Rule C.2.4.1, shall cease to be a member. Rule C.7.1.1, however, (to which junior counsel does not refer) provides that the NEC ‘may decide otherwise’, i.e. that the dismissed member (who is not an unemployed member within the definition) shall not cease to be a member. By this resolution the NEC is clearly deciding otherwise. Junior counsel does not explain the basis on which resolution 6 breaches this provision (which appears to validate it). 94. Rule C.7.4.2 appears to have no relevance. It deals with suspension pending disciplinary proceedings and does not deal with the preservation of membership or elected office. Clearly, the effect of resolution 6 will be that a member who is suspended from office by the union then dismissed from their job by their employer will remain suspended from office. They will not be entitled by this motion to resume the office from which they have been suspended. The motion does not purport to overturn extant disciplinary proceedings or suspensions by UNISON. 95. Rule D.2.2.2 appears equally irrelevant since it specifies only full members of a Region can vote for Regional seats. Where the NEC ‘decides otherwise’ and that a member dismissed by their employer is to remain a full member of the union, the member will have a vote in their Region. 96. Rule M.1.2.1(d) also appears irrelevant. It provides that a member must cease to be a trustee of the union if they cease to be a member. As before, if the NEC ‘decides otherwise’ and that a person who was, prior to dismissal, eligible to be a 25 trustee, will remain a member notwithstanding that dismissal then they will remain eligible to be a trustee. 97. Junior counsel suggests that, depending on the facts, the resolution may be contrary to the objects of UNISON (presumably those in Rule B). He does not identify any particular object and I am unable to detect any breach of those objects in the NEC’s wish to preserve (unless and until the NEC decides to the contrary) the membership and office of those who are dismissed by their employer, as the Rules empower them to do. The proposition is not explained by junior counsel. 98. In short, resolution 6 is lawful and not merely consistent with the Rules but an exercise of powers specifically set out in the Rules. Junior counsel’s advice to the contrary is wrong. Consequences 99. Finally, junior counsel suggests that the resolutions will have dire consequences for UNISON and the members of the NEC who voted for them. He sets out his advice in numbered points which I will address seriatim. He begins: Consequences arising if the NEC moves to adopt resolutions 2, 3, 5 or 6: There are extremely serious consequences if the NEC moves to pass a resolution which is in conflict with the Rulebook: 100. The resolutions are, however, not in conflict with the Rules. 101. Junior counsel advises that: (i) The NEC will be acting ultra vires (it will be acting outside of its powers). 102. The motions are not, however, ultra vires. (ii) Rule C6.1 states that “Every member shall observe all the Rules of the Union”. This applies with no less force to members elected to the NEC. This is buttressed by Rule I.1: “All members of the Union have a duty to follow the Rules of the Union”. These obligations are given particular prominence in Rule I.2.1 and 2.2 in that disciplinary action may be taken where a member disregards a Rule of the Union or otherwise acts in a manner which is “prejudicial or detrimental” to UNISON. 26 103. This is a correct legal analysis. However, the resolutions do not involve a breach of the Rules. (iii) Any resolution passed in breach of Rule N is void and not capable of being enforced or implemented. 104. This too is true but the resolutions do not breach Rule N. (iv) Any instruction issued to any UNISON employee based upon an unlawful resolution is by definition not a legitimate instruction. Therefore, as such an instruction is unreasonable, a member of staff can decline to comply with it without disciplinary censure. 105. This is also an accurate statement of the law but the premise is false. The resolutions are not unlawful, however. Every employee should know that refusal to comply with a reasonable and lawful instruction is likely to amount to gross misconduct which could result in dismissal without notice. (v) UNISON runs a very real risk of being exposed to litigation in the form of High Court proceedings for declaratory or injunctive relief, or otherwise proceedings before the Certification Officer. 106. Any risk may now have receded in light of this opinion. Should there be any further issues I would be happy to advise. 107. Junior counsel has added: Fiduciary duties: It is also important to emphasise that each member of the NEC is classified in law as a fiduciary (in the same way that a trustee or director on a Board owes fiduciary duties). A fiduciary owes exacting legal obligations to act in the best interests of UNISON, to avoid any actual or potential conflicts of interest, and in doing so has to comply with an obligation of candour to disclose anything which might amount to even a potential conflict of interest. 108. I find it difficult to see how this relates to the lawfulness of the resolutions. I imagine that all NEC members are dedicated to the best interests of Unison and are candid about potential conflicts of interest. 109. Junior counsel’s advice concludes: In circumstances where clear legal advice has been provided that the resolutions are ultra vires, in breach of Rule, and could expose UNISON to legal proceedings, it is seriously open to question whether each NEC member who votes to move resolutions 2, 3, 5 or 6 has discharged their fiduciary obligations to act in UNISON’s best interests. 27 110. The ‘clear legal advice’ is presumably a reference to that provided by Mr Brittenden. Unfortunately, it contains many patent errors and omissions and is, in almost every respect, wrong. Given that his advice was disputed at the NEC and is disputed now, it is quite impossible to see how any member of the NEC could have been in breach of their fiduciary obligations. It is worth repeating yet again that, subject to the ultimate decision of the Court, it is for the NEC (and no- one else) to interpret the Rules in cases of ‘doubt, conflict or dispute’: Rule D.2.11.3. 111. As indicated above, I will be happy to advise further. Lord Hendy QC Old Square Chambers 13 October 2021 Deighton Pierce Glynn 382 City Road London EC1V 2QA Ref: 4884/001 JD 28