1 Re: UNISON and Certain Resolutions adopted by the NEC on 6 th 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 am ended 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 rela ting to disciplinary procedures within the union. 2 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 ru les 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 s peech 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 trad e 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, tha t 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 3 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 w ho 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 practic e 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 he ld 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 wa s 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 H eaton'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 pas sage 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 ru les 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. 4 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. 691 3 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 interpretati on 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 Trans port Workers, AB v CD [2001] IRLR 808 4 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 un ion 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 regio nal 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 A rea) [1985] IRLR 99. 5 3 In which I appeared. 4 In which I appeared. 5 In which I appeared. 5 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; [20 17] 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 committee s 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 Relati ons (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. UN ISON’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 6 to give a b inding 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). Po wer 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 bet ween 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 a nything 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 se t 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; ... 7 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 sha ll 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 pow er 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 determine d. 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 busi ness 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 o ther 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. 8 23. Only Branches and the NEC may decide to charge a member (Rule I.6) and only those bodies may determine disciplinary hearings. Their re spective 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 me mbers 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 invest igation 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 R ule 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 readin g 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 sho uld 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. 9 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 t o 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 agreemen t 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 d etermined. 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 m akes 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, Re gion 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. 10 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 unio n (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 Delega te 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 Natio nal 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 Secretar y 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 Exe cutive 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 re ferred to as the ‘Presidential Team’ 11 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 UNI SON 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 fla wed 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 a ssist 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 Con ferences 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 lawf ul 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 12 analysis if this is required. ’ Unfortunately, in his haste junior counsel has omitted reference to various re levant 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 d iscussed 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 und er 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 anythi ng 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 fou nded, 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 withi n 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. 13 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 questio n 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 Commi ttee 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 t herefore 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 14 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 betw een 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 N EC was warranted in formalising such a delegation of powers by th is 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 ’. 15 49. One of the NEC’s functions is precisely that o f 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 p owers 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 Gener al 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 a n 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 16 has delegated full powe r, 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 th at 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 unwo rkable. 53. Having ignored Rule D.2.1 and Rule D.2.11.15, j unior 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 Exec utive 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 per haps 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 dir ect 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. 17 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 accordanc e 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 Secretar y 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 fundament al 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 appr oved 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. Howev er, 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 the y 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) T he General Secretary is the only employee entitled by the Rules to speak at the NEC , but decision - making is exclusively that o f the NEC , to whom the membership have entrusted the direction of the union. 18 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 Secret ary 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 , w