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Can the new Charter survive?
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In December 2003, 16 of the 21 pharmacists on the Royal Pharmaceutical
Society’s Council voted to petition the Queen for a new Royal Charter.
Last week they went to court. They were there to request a summary judgment
against the Save Our Society’s High Court action, which seeks to
show that the Council acted beyond its powers in petitioning for the
new Charter.
The SOS group believes any resolution to petition the Queen, through
the Privy Council, needs the assent of the membership, not just the Council,
before it can be passed. It therefore started legal
proceedings (PJ,
31 January, p109) against the 16 members of the Society’s Council
who had voted in support of the petition (PJ, 13 December 2003, p801).
The Society, which was also named as a defendant, submitted an application
for summary judgment shortly afterwards (PJ, 28 February, p235), and
this application was heard by Mr Justice Park on 19 and 20 May.
After considering submissions from both sides of the argument, the judge
upheld the Society’s application (see p659), rejecting the SOS
position as “utterly unrealistic”.
Giving his judgment on 21 May, he said that a “full trial” in
the High Court was not necessary because he could resolve the pure legal
issues without hearing comprehensive evidence. He said he sympathised
with the views expressed on both sides but had “no view whatever” about
the merits of the proposed new Charter.
He added: “In my judgement, the submission of the petition to the
Privy Council — such submission being made on the resolution of
the Council and carried by a 16 to five majority — was lawfully
made.”
It is clear, said the judge, that some of the Society’s members
are unhappy that the new Charter would stress the Society’s “public
benefit” and “regulatory function” at the expense of
safeguarding members’ interests. But he added: “I am wholly
unable to form a view over whether the opponents were a majority or a
minority of the membership.”
But, he told the court, “the notion that a majority of the total
members can act for the Society to petition for a new Charter, but that
the Council cannot, is utterly unrealistic, and the law would be in a
sorry state if it was correct”. The Council is the proper body
to act for the Society in petitioning for a new Charter, he said.
The Society’s application was set out in court by its counsel,
Robert Englehart, QC, on 19 May. He told the judge that while there was
a “vigorous difference of opinion” about whether the new
Charter is a good thing”, it was for the Privy Council, not the
High Court, to weigh up the pros and cons.
By way of background to the case, Mr Englehart told the judge that in
March 2002, after a consultation during which pharmacists had indicated
that they wanted the Society to maintain its dual regulatory and representative
roles (PJ, 16 March 2002, p379), the Council had resolved early in 2003
to petition
for a new Charter (PJ, 15 March 2003, p379). In June of that
year, some members of the Society called a special general meeting, which
was attended by 330 of the Society’s 46,500 members. Four resolutions
against the Council’s position were passed (PJ, 7 June 2003, p802).
But, said Mr Englehart, these were not binding on the Council, nor was
it considered that “resolutions passed at a meeting of only some
330 members were truly representative of the views of the membership
as a whole”. The Council had full authority to refer the petition
to the Privy Council under Article 12 of the 1953 Charter.
Speaking for the four litigants representing the SOS group, Christopher
McCall, QC, took the opposite view. He said that seeking replacement
of the Charter is not within the Council’s remit, adding that the
shift towards the “public interest” element of the Society’s
role undermined its traditional functions.
He told the judge that he would need to conduct a rigorous inquiry into
the precise aims envisaged by the Society and “the extent to which
the body was seeking to continue to maintain its representative role”.
Indeed, the Society’s attempt to have the SOS action summarily
dismissed was an inadequate means of dealing with the serious issues
raised. The new Charter, he believed, would place a fundamental limitation
on the objects of promoting the interest of members. “Our basic
proposition is that there is indeed a change of stance going on here
and that is what we say the Council is not able to introduce,” he
told the judge. He added that the Society is “changing its spots
in a way that makes it that much more of a regulatory body and much less
of a representative body”.
On being asked by the judge who had the power to make fundamental changes,
Mr McCall said this was the task of members, by majority vote. “The
Society belongs to its members and not to its Council; the Council is
there to work on behalf of its membership, not to override it,” he
said.
Final submissions were made on 20 May. Mr McCall argued that the Society’s
governing Council had an obligation to hold a referendum among its members
on the issue of whether to petition the Privy Council to amend its current
Charter. He added: “Just because this is a large body, it is not
necessary to say that it cannot operate through the majority of its members.”
But Mr Englehart argued that there was no clear line of legal authority
dictating that all members should vote on such crucial issues. The Society’s
current Charter instead made plain that “the Council is the body
which by and large takes decisions for the Society”.
Requesting the judge to dismiss the SOS group’s action, he said
that, despite Mr McCall’s claims that a full trial is necessary,
he believed that the core arguments were capable of summary dismissal.
Mr Englehart also took issue with claims that the decision to lodge the
petition should have been subjected to a vote by members, concluding: “There
is no authority for the proposition that in all cases you need the majority
of members’ approval before the petition can be made to Her Majesty.”
Mr Englehart told that judge that this was a dispute that was best hammered
out by the Privy Council, which could hear all conflicting views. An
exhaustive High Court hearing was therefore unnecessary.
Mr Justice Park agreed. But the SOS representatives have now instructed
their lawyers to lodge an appeal at the Court of Appeal (see p659). So
his ruling has not exactly opened the way for the Society to press on
with the petition, which the Privy Council put on ice until the legal
issues could be resolved. In any case, given the recent Council election
(PJ, 22 May, p629), in which seven new members were elected under the
Save Our Society banner — seven members whose election pledge was
to hold a referendum among pharmacists on the Charter proposals — the
ruling could be considered a Pyrrhic victory for the Society. It has
probably come too late to save the existing proposed new Charter.
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The
Pharmaceutical Journal