The proceedings were 'interlocutory' and did not therefore require the oral examination of witnesses. Accordingly the evidence was read out by Counsel from the affidavits. An important early one was from Mr David Gaiman, and it was read to the Judge by Mr Peter Pain, QC, who was again representing the scientologists. It had been made and sworn to on 8 December 1969; and by way of indicating the general form of all the other affidavits, it is here reproduced in full:
IN THE HIGH COURT OF JUSTICEThe affidavit by Mr Gaiman's solicitor (Mr Colombotti) said, in effect, that the expulsion of the scientologist members from the NAMH was unlawful, since No. 7 of the NAMH's Articles of Association, under which the expulsions had been ordered, was itself invalid and unlawful. (Article 7 departed from the form which was 'laid down' by the Companies Act of 1948, and to which the NAMH, as a limited company, should have conformed.)
1. DAVID GAIMAN
2. LESLIE LEE
3. JOE KING
4. PATRICIA WEBSTER (spinster)
5. MONICA ASKEY (married woman)
6. PETER STUMBKE
7. DEREK COLLEY and
8. PETER GINEVER (the last named suing on behalf of himself and all other members of the National Association for Mental Health who by Resolutions of the Council of Management thereof passed on 10 November 1969 have been requested to resign)
THE NATIONAL ASSOCIATION FOR MENTAL HEALTH
'I DAVID GAIMAN, of Harwood House, South Harwood Lane, East Grinstead in the County of Sussex, Public Relations Officer, the above first-named Plaintiff, make Oath and say as follows:-
'I make this Affidavit on my own behalf and also on behalf of and with the authority of the seven last-named Plaintiffs. Save as otherwise appears the facts to which I depose are within my own knowledge. Further to the extent that I express matters of opinion, such opinion is truly held by me, and, I verily believe, also by the seven last-named Plaintiffs.
'All the above-named Plaintiffs are Scientologists. I myself am a Deputy Guardian of the Church of Scientology of California, a corporation incorporated under the laws of the State of California, United States of America, and registered in England, and am also their Public Relations Officer; my knowledge of their affairs and aims has been acquired in such capacity.
'I have read the Affidavits and affirmation of Lord Balniel, David Hazell Clark [1. See page 120.] and Lyn Caldwell Connell sworn herein on behalf of the Defendants together with the exhibits thereto. I am advised that many of the matters deposed to, particularly by Lord Balniel, are not strictly relevant to the issues in respect of which I and the other Plaintiffs are seeking relief in these proceedings. Nevertheless I recognise that it would be unrealistic not to acknowledge that the reason why the Defendants have acted as they have done is the hitherto deep-seated antipathy which their Council of Management has felt towards the Church of Scientology and its members, and their fear that their objects will be frustrated if Scientologists in substantial numbers attain office or membership.
'I do not accept that such fears are well-founded. All the Plaintiffs accept and approve the objects of the Defendants as set out in their Memorandum of Association and as described by Lord Balniel in his affidavit. It is our opinion however that such objects are not being pursued, and will certainly not be attained effectively by the policies which are being pursued by the present Council of Management and are likely to be pursued by persons who, as I submit is apparent from Lord Balniel's affidavit, are in effect their nominees to succession in office.
'So far as the problems of mental health and treatment thereof are concerned it is no doubt right that the most important point of divergence between the Church of Scientology (which is supported by many prominent psychiatrists) on the one hand and the view represented by the Council of Management of the Defendants on the other is the Church's opposition towards certain of the present modes of psychiatric treatment to which mentally ill people are subjected. But quite apart from this, I and the other Plaintiffs are of the opinion that all the objects of the Defendants would be better achieved if there were an influx of new ideas, debate and even dissent. It is I submit clear from the affirmation of Dr Clark that there is room for controversy.
'It was with such considerations as the above in mind that in the early part of this year Scientologists began to join the Defendants so that some attempt could be made at least to enter into reasonable argument with the Defendants. Since August 1968 I had been in correspondence with Mr J. D. Gomersall, a lecturer in the Department of Mental Health at Aberdeen University, and copies of my correspondence with him are now produced and shown to me. As appears from his letter to me of 30 April 1969, he interceded on our behalf with the Defendants, and when I learnt from him that he had done so I myself wrote to their General Secretary on 6 May 1969. A copy of my letter and of her reply dated 9 May are now produced and shown to me.
'It was obvious that an impasse had been reached. Prior to this time a number of scientologists including the second, third, fifth and sixth named Plaintiffs had joined the Defendants with the view of participating in their transactions. All the Plaintiffs and a number of other scientologists came to the conclusion that the only way of engaging in serious discussion and achieving some influence within the Defendants was to increase our membership and put forward candidates for Office.
'It has not been possible for me yet to verify every detail in paragraphs 20-26 inclusive of Lord Balniel's affidavit, but I note from paragraph 28 that 302 members were requested to resign - all being persons known or reasonably suspected of being scientologists. So far as I have been able to ascertain not more than about 150 scientologists have joined the Defendants this year; some may have done so previously; others may have done so without my knowledge in the past few months; but I am reasonably confident, because of the publicity the matter has attracted, that nearly all scientologist members would have told me of their membership by now. I might add that there are five or six members known to me, or to one or other of the Plaintiffs, who though not scientologists, could I suppose be "reasonably suspected" of being so. They include my mother.
'Following the publicity and events occurring subsequent to my nomination as Chairman, and having carefully considered the affidavits sworn on behalf of the Defendants, especially Lord Balniel's affidavit, I had come to the conclusion that it might be damaging to the Defendants in the present climate of public opinion if I was elected as chairman and that there is a reasonable prospect of my being elected if my candidature is allowed to go forward. I am therefore prepared to withdraw from my candidature for the Chairmanship of the Defendants; I am informed by Mr Lensworth Sylvester Small that he shares my views and that he is prepared to withdraw his candidature for the office of Honorary Treasurer. We do so without prejudice to the contentions made by the Plaintiffs in these proceedings.
'Finally, I confirm the truth of those parts of the affidavit of my Solicitor Mr Colombotti, sworn herein on 12 November 1969, which concern me or my actions.'
Article 7 had better be looked at now, since its form and validity were crucial to the action before the Court:
A member of the Association shall forthwith cease to be a member:The scientologists' criticism of this was that it did not remotely resemble the form 'prescribed' in the Companies Act for 'a company limited by guarantee and not having a share capital', and that there was no evidence that the NAMH had any reason for not adhering to that form. In due course, Mr Justice Megarry was to rule that the form set out in the Act was merely 'intended to provide a model and not a strait-jacket'. It will be appreciated that, if he had ruled otherwise, the NAMH Article 7 would have fallen to the ground and the expulsions of the scientologists would indeed have been unlawful.
a) if he shall resign by giving notice in writing to the Association of his intention so to do, in which case he shall cease to be a member upon receipt of the notice by the Association.
b) if he is requested by resolution of the Council [1. i.e. the Council of Management of the Association.] to resign; but so that a member so requested to resign may, within seven days after notice of the resolution shall have been given to him, by notice in writing to the Secretary of the Association appeal against such resolution to the Association in General Meeting, in which case the Council shall with all reasonable dispatch convene a General Meeting to consider the matter, and in the event of the appeal being successful the resolution requesting the member to resign shall be void ab initio.
The affidavit of Lord Balniel, as chairman of NAMH, was necessarily the main answer to that of Mr Gaiman. 'I, Robert Alexander Lindsay, commonly called Lord Balniel, Member of Parliament,' it began, 'make Oath and say as follows ... I am the Member of Parliament for the constituency of Hertford, and since 1967 I have been the Opposition's spokesman on matters relating to health and social services in the House of Commons and in this capacity as a member of the "shadow" cabinet.' Before dealing with the 'matters of detail' in the scientologists' affidavits he referred to Mr Justice Megarry's expression of opinion on 11 November, in granting the interim injunction, that the expulsion of the newly joined scientologists was 'wrong'; and in the following words he explained why it had seemed to him and the Council of Management to be, on the contrary, right:
The Association is a wholly charitable organisation. The Memorandum and Articles of Association had to be approved both as to their original form and subsequent alterations by the Companies Department of the Board of Trade as a condition for the licence given to the Company to dispense with the word 'Limited' in its name, and also by the Charity Commissioners. The value of the work done by the Association in the field of mental health is recognised by the Government, in that the Association receives an annual grant. The amount of this grant for each year between 1951 and 1965 was as follows:Lord Balniel went on to say that the only people who could vote at an Annual General Meeting were 'members actually present' (proxy voting was not allowed); that the Council of Management comprised the Chairman, Vice- Chairman, and honorary Treasurer with not more than eighteen ordinary and not more than six co-opted members; and that a third of the Council retired by rotation at each AGM. The only voting members were those who paid the two-guinea subscription - 'the very many local associations and affiliated bodies who do much of the work of the Association in conjunction with its full-time staff and officers do not have voting rights. The members who do have voting rights are drawn from all parts of the country and it is impractical for many of them to travel purely for the Annual General Meeting unless they stay in London overnight.' [2. The NAMH had at that time about 2,000 voting and 600 non-voting members; and there were 600 affiliated bodies whose representatives did not have NAMH voting rights.] He explained why the NAMH had evinced any interest at all in scientology:
1951 L6,000 1952 L6,000 1953 L7,000 1954 L7,000 1955 L12,000 1956 L12,000 1957 L12,000 1958 L10,500 1959 L10,000 1960 L10,000 1961 L15,000 1962 L15,000 1963 L10,000 1964 L5,000 1965 L2,000In 1966, 'so that the Association could plan ahead with greater certainty', the Ministry of Health stated that they would give to the Association L10,000 for each of the next five years. (The Ministry of Health at the time of this announcement was the Rt Hon Kenneth Robinson, MP. Mr Robinson had been a Vice-President of the Association.) In addition to the above, the Association has income from trust funds, and each year receives numerous donations, including some by way of Deed of Covenant and legacies. ... The expenditure of the Association has grown from L78,000 in 1951/52 to L397,000 in 1968/9. [1. The L10,000 grant from the Ministry may be set against the Association's annual expenditure of L400,000 when considering the suggestions sometimes made that the NAMH is 'an arm of the establishment'.]
The Association maintains a general interest in organisations and medical developments which purport to help people suffering from mental disorder of any kind. In 1960, when the headquarters of the Scientology movement moved to Saint Hill Manor, East Grinstead, this fact was noted in the Association's Journal Mental Health because the Association knew that the movement's founder L. Ron Hubbard had written a book called Dianetics, the Modern Science of Mental Health.Lord Balniel referred to the libel writs still outstanding against the NAMH at the instance of the scientologists, to the repeated attacks by the latter against the former, to the demonstrations outside the NAMH offices, and to the fact that the scientologists had, on 5 October 1969, been supplied by the NAMH with a complete list of the members' names and addresses. The two resolutions - set out on page 106 - by which the new scientologist members hoped to educate the NAMH in the faculty of self-criticism were received on 27 September and 8 October, and were considered at a meeting of the Council of Management on 10 October. The Council thought it was its duty to circulate them to all members for discussion at the forthcoming AGM; but on 2 November the sponsors of both resolutions wrote to say that they were withdrawn. Lord Balniel went on to give details of the unprecedented rise in NAMH membership from the point when the scientologists began to take an interest in 'psychiatric atrocities': monthly applications for membership since the beginning of the year had been as follows:
Since midday on 31 October no new members had been admitted, and accumulated applications for membership were awaiting consideration by the Council of Management. As mentioned earlier, significant numbers of the October and November applications enclosed two-guinea postal orders issued at Store Street Post Office, London (close to the scientology bookshop); while others had East Grinstead Post Office as their place of issue or East Grinstead banks as the origin of their cheque-books. 'At no time', said Lord Balniel, 'was the Association informed by the scientology organisation that this sudden influx of applications was due to scientologists wishing to join.'1969 Number of applications January 8 February 47 March 18 April 34 May 13 June 16 July 14 August 14 September 10 October 1st to 11th 12 12th to 31st 215 November 1st to 12th 112 (eighty of these 13th to 28th 23 came on one day - 3 November)
Nominations for election to the Council of Management had to reach the NAMH offices not less than three days before the AGM - arranged for 12 November 1969. On 7 November a girl from a London solicitors' office handed in seven nominations and obtained a receipt for them. They proposed for office a number of the plaintiffs in the present action, as follows:
The following, who were not plaintiffs in the action, were nominated for office in these capacities:
Attendance at the Annual General Meeting was usually small [1. This is true in general of all associations that do not concern animals or motorists.]; 104 in 1963, 204 in 1964, 196 in 1965, and between 200 and 250 from 1966 to 1968. Lord Balniel explained that there were no contentious resolutions at these meetings, all being carried unanimously; it was not possible to say how many 'voting members' had been present but the figure was probably no more than fifty to seventy-five - eighteen members of the Council and perhaps thirty-five other members. The others present were representatives of local Associations and affiliated bodies. The position at the 1969 AGM, said Lord Balniel, was therefore like this.
'Accordingly' (Lord Balniel's affidavit continued) 'the members of the Council consulted together over the weekend and a formal meeting was held on Monday, 10 November, at which the membership was reviewed. Only those persons known to be or reasonably suspected of being scientologists were requested to resign in accordance with Article 7 of the Articles of Association. A total of 302 members were requested to resign. This decision was taken in good faith and in what were believed to be the best interests of the Association and the members as a whole. The basic reason was the threat that scientology posed to the Association and all it stood for. This is further explained in the affidavit of Dr Clark; and additional factors which weighed with the Council if scientology were to obtain substantial representation in the Association were:
- In the month of October there had been a wholly unprecedented number of applications for membership.
- Without prior discussion, at the last possible moment and immediately before a weekend, a number of persons known to be scientologists had been nominated for election to the offices of Chairman, Vice-Chairman and Honorary Treasurer and the six places on the Council of Management which would become vacant. Many of these persons had only just joined the Association and none of them was known to have worked actively for or with the Association in its endeavours.
- The Scientologists' organisation had repeatedly attacked the Association and its officers publicly.
- The Scientologists had proceedings outstanding against the Association in two libel actions.
- The members of the Association as a whole, many of them of a number of years' standing, were unaware of these developments and, even if made aware, would probably in many cases be unable at such short notice to travel from all parts of the country to attend and vote in person at the forthcoming Annual General Meeting early in the following week, so that the will of the majority of the members of the Association could not become known.
- The large number of members who have joined over the years did so knowing the policy of the Association explained in the affidavit of Dr Clark. [1. This statement by Dr David Clark, which is essential to an account of these proceedings, begins on page 120.]
When it became known through the press that the scientologists had been expelled from the NAMH Lord Balniel continued, 'numerous telephone calls of support were received from ordinary members of the Association at its headquarters. In addition many members wrote or sent telegrams of support and approval.'
- The loss of the moral and active support for the Association of its workers in the field, such as members of local Associations and affiliated bodies as well as the staff of the Association itself.
- The Association's responsibility to the young and old people in its charge.
- The loss of revenue in the form of membership subscriptions and legacies and donations, also the grants from Central Government and local authorities which are an essential factor in enabling the Association to carry out its work. ... Having regard to the Government's stated position on Scientology I have no doubt that future Government Grants will be in jeopardy if the scientologists obtain a substantial foothold within the Association.
And in due course there were 135 voting members at the AGM (compared with the usual thirty-five). 'I verily believe', Lord Balniel went on in the formal language of his affidavit, 'that this increase in numbers was due to the wide publicity given to the Association's affairs in the press, on the radio and television, and the members' wish to defend the true aims and objectives of the Association. In addition, some 350 representatives of affiliated bodies and local groups attended to lend their support although they had no voting rights.'
And his affidavit concluded with a statement of belief about all these issues which would have made a ringing declaration from the witness-box-and which, accordingly, almost engendered regrets that this was an interlocutory hearing, involving only the reading of affidavits, and not the 'full trial' of an action:
It is my view that the professed creed and ideology of the scientology movement, and the means which its members are prepared to adopt to achieve its aims, are utterly incompatible with the aims of the Association and the well-being of the mentally sick. Naturally my views have been influenced by those views of responsible members of the Government expressed in Parliament; but the views which I have formed have hardened with my reading of the literature of the scientology movement, and with my understanding of the danger to mentally ill patients which can be caused by treatment advocated by the scientologists.Lord Balniel's affidavit was the basis of some interesting exchanges between Mr Neill and the Judge, but these will be more readily understood if we first consider the affidavit of Dr David Hazell Clark, the NAMH Vice-Chairman.
'I am a Fellow of the Royal College of Physicians of Edinburgh,' Dr Clark began, 'a Doctor of Medicine of Edinburgh University, and hold a Diploma of Psychological Medicine of the University of London. I have been a practising psychiatrist for twenty-two years and am Physician Superintendent of the Fulbourn Hospital near Cambridge, Consultant Psychiatrist to Addenbrook's Hospital, Cambridge, and an Associate Lecturer in Psychiatry at the University of Cambridge. I am the author of a book called Administrative Therapy and numerous articles on the treatment and rehabilitation of patients in mental hospitals, which have appeared (for instance) in The Lancet. For four months in 1967/8 I was World Health Organisation consultant in Community Mental Health to the Government of Japan.' He had trained under Sir David Henderson at the Royal Edinburgh Hospital and had a three-year post-graduate course at the Maudsley Hospital. When he went to Fulbourn Hospital as Physician Superintendent in 1953 all its 950 patients were being kept under lock and key. 'From arrival I worked to change that so that patients might have freedom, human dignity and a worthwhile life, and occupations which required an "open door" policy. By 1958 all the doors were open. In subsequent years many patients were rehabilitated from the hospital to independent lives in the community, so that by 1968 the resident population was down to 680 despite a rise in admission from 500 per annum in 1953 to 1,500 in 1968.' Dr Clark was also a consultant in general hospitals and at other psychiatric clinics for out-patients. He was aware, he said, that sufferers from minor emotional disorders could be helped 'by persons without any medical or psychiatric training, for example a priest or a solicitor', but his twenty-two years' experience in psychiatry convinced him that a full training in both physical medicine and psychiatry was essential for treating the major mental disorders - schizophrenia, melancholia, paranoia and senile psychosis. He then referred to a copy of Freedom Scientology headed 'International Edition No. 3' but bearing, as usual, no date, of which the opening sentence was this: 'There are no insane. There are only the physically ill.' And on another page, he said, appeared this statement about 'Dianetics' (it is in fact the work of Ron Hubbard):
In Dianetics insanity is shown to be common physical illness, yet asylums have no medical facilities. Dianetics can handle insanity with relative ease once the physical injuries and illnesses of patients are cured medically, or when the patient is only lightly ill. A new breakthrough on this is now being taught real MD's [1. It never became clear whether this meant Doctors of Medicine or mental defectives.] in England by a team I trained. So there is an easy cure for insanity in ordinary medical treatment of broken badly-heeled bones, bad kidneys, etc., plus easy Dianetic auditing. Dianetics had been available and proven for twenty years. Yet psychiatric front groups have been able to command sufficient political action to prevent its use instead of getting bills passed to easily seize anyone, torture and kill him. ... Psychiatric treatment is actually psychiatric political treatment, nothing more, to rid the world of anyone who might disagree.Dr Clark also quoted some of the Hubbard animadversions, which have appeared earlier in these pages, on the subject of psychiatry's anti-Christ teachings, advocacy of sexual perversion, hostility to the Crown, and professional habit of killing young girls for fun. He threw some doubt on these, and went on to outline what psychiatrists really did:
Some treatments are widely accepted by psychiatrists though some are controversial. The use of tranquilliser medication such as CHLORPROMAZINE for the control of acute schizophrenia, hypnotics such as AMYLOBARBITONE for insomnia, and anti-convulsants such as PHENYTOIN for epilepsy are accepted, as is the use of penicillin for General Paralysis of the Insane and anti-depressant drugs such as IMIPRAMINE for the treatment of depressions. The use of electro-convulsive therapy is accepted by most psychiatrists and generally successful in the treatment of melancholia. Nowadays the patient commonly receives anaesthetic and relaxant drugs before the treatment is given, so that the patient does not normally have convulsions. The operation of pre-frontal leucotomy for certain severe cases is accepted by many but criticised by a few psychiatrists.The concluding sentence may have been less needful than the one about medical qualification, since most people would assume rape and murder to be outside normal medical practice whilst many, not knowing the difference between a psychiatrist and a psychologist, assume that all are doctors. But Dr Clark had been asked to refute specific allegations with an appearance, at least, of taking them seriously, and he then went on to deal with the moral and religious issues facing medical practice, the scientologists' allegations about doctors as militant atheists, and (in conclusion) the functions of the NAMH:
It is fair to sum up by saying that in the present state of human knowledge it is accepted by the medical profession and informed laymen that the most successful and safe treatments for mental disorders are to be had from psychiatrists. It should be unnecessary to add that all psychiatrists in this country are medically qualified doctors, subject to the law and subscribing to the medical code of ethics; and accordingly they do not ... rape girls and youths, murder their patients or conduct death camps.
I personally am a Humanist. Psychiatry is a medical speciality which is applied by doctors of most religions to patients of all religions. Psychiatrists work with ministers of all denominations and religions in the common task of assisting the ill, including the mentally ill, to regain their mental health. It is not part of psychiatry, which is a scientific discipline, to engage in religious controversy or to ridicule any person's faith or deny the existence of God. It is not the function of the National Association for Mental Health to act as a 'front group' for psychiatrists, nor does it. The Association is in no sense a professional or representative body for psychiatrists.All this was read out by Mr Patrick Neill, QC, to Mr Justice Megarry in Court No. 10, the only persons present being the lawyers and parties involved, two somnolent figures in the public gallery and one press representative who was drawing floral patterns in his notebook. There followed a succession of 'extracts from modern medical writers', put in by the scientologists to support their contention that they were not alone in their views about the evils of psychiatry. Here are a few suggestive extracts from those quoted:
For years the scientologists have offered to help the emotionally disturbed, and some individuals who seek help claim to have benefited. They have, however, not offered any clear detailed plan for treatment of the mentally ill and those in institutions; they have recently made sweeping criticisms of the care offered in institutions but they have offered no alternative plan for the treatment in their place. I have spent my professional life in the care of the mentally disordered and know what a complex and difficult task it is to provide adequate care and treatment for them.
Because I believe an enlightened public opinion is essential to the welfare of psychiatric patients and for the practice of good psychiatry I have been involved in the work of the National Association for Mental Health for over a decade, and in 1966 accepted the Vice-Chairmanship. It has always been the policy of the Association to hear all viewpoints and work with all groups concerned in the welfare of the mentally disordered. The Association has never ruled out the work of any responsible group and the membership includes psychologists, psycho-analysts, psychiatrists, social workers, psychiatric nurses, medical officers of health, justices of the peace, religious nursing sisters, school teachers, and perhaps most important, persons who are or have been mentally ill. The whole object of the Association is to learn and consider differing views on mental health. For example, the Annual Conference has been addressed by psychiatrists as widely divergent in their views as Dr William Sargant, the advocate of pre-frontal leucotomy, and Dr R.D. Laing, the severe critic of leucotomy and electro-convulsive therapy, who is quoted with approval in Freedom Scientology.
The Association also believes that the welfare of the mentally ill and their relatives is best safeguarded by working with all professional and lay groups concerned in this area, but that any attempt by any one sectarian faction, whatever its views, to dominate the Association's work would be gravely damaging to that work and reputation and also to the interests of the members generally who joined an organisation designed to embrace diverging views in its field of interest. In particular the Council of Management takes this view of a sectarian faction holding such beliefs as those quoted.
I believe the National Association for Mental Health to have been the most potent force in improving the lot of the mentally and nervously ill and their relatives in this country during the twenty-three years of its existence. The manner in which it has achieved this can be broadly set down under three heads:-
- It works to mobilise active public opinion. Its Annual Report is widely distributed at home and abroad.
- It also makes a point of working with professionals in the field, the doctors, the psychiatrists, the nurses and social workers.
- It is responsible for some ten institutions containing over 200 individuals suffering from various forms of mental or emotional disorder. These institutions are staffed by professionally qualified teachers and nurses assisted by doctors and consultant psychiatrists.
If the Association became dominated, or was subjected to intense pressure, by one cohesive group, represented largely on the Council of Management as well as inside the individual membership, I verily believe that those aims of the Association would be lost, for the following reasons:-
(i) The professionals, and in particular the psychiatrists, would sever their relationships with the Association. This would mean it was no longer possible for the Association to work with the professionals in the field of mental health, and it would rapidly become a minority discredited opinion.
(ii) Its liberal policy of publicity and discussion could, and possibly would, be turned to the ends of the pressure group inside the organisation, as opposed to broad discussion and publicity to improve the lot of the mentally ill generally.
(iii) It is highly likely that the local authorities paying for the maintenance of individuals who are mentally ill and in the care of the Association's institutions would withdraw their support and their patients. I have no doubt that those suffering individuals at present in the care of the Association would be harmfully affected if this were to happen; and
(iv) Although the staff have loyally made no such statements to the Council of Management, I fear that many of the present devoted and hard working staff, and in particular the General Secretary who has worked so successfully for it since 1951, would resign if they found that the Association had a large membership, both on the Council and amongst the ordinary members, of Scientologists who have openly and repeatedly attacked the Association and also the Chairman and General Secretary.
Dr Seaborne Jones in Treatment or Torture (Tavistock Publications, 1968):
page 288: Shock is a form of torture (even when unconscious pain is felt) in the sense that it increases total fear. It may make subsequent analytic treatment ineffective. [On page 245 he quotes Dr William Sargant as saying] religious feeling in man may be destroyed if too extensive an operation is performed on the frontal lobes.Dr R. D. Laing, the well-known psycho-analyst who researched at the Tavistock Institute of Human Relations in London, writing in The Politics of Experience:
page 100: There is no such condition as schizophrenia but the label is a social fact, a political event.Drs Braginsky and Ring in Methods of Madness (Holt, Reinhart & Winston, 1969):
page 101: After being subjected to a degradation ceremonial known as psychiatric examination [the patient] is bereft of his civil liberties, being imprisoned in a total institution known as mental hospital.
page 174: By providing a reassuring interpretation of society's deviants, psychiatry not only justifies its own existence but also unwillingly insures the perpetuation of a scandalous double hypocrisy; the myth of mental illness continues to be foisted, enabling a complacent society to misconceive utterly the nature of its most essential reforms.Erving Goffman, formerly Professor of Sociology in the University of Berkeley, California, in Asylums (1961), Penguin Books, 1968:
page 179: Statistics show clearly that even in the most active and up-to-date therapy centres in the world, the number of persons who have been successfully rehabilitated is painfully small. The results are in fact no better than those obtained decades ago by 'moral treatment' (Brockover, 1963); and as Eysenck (1966) points out, 'about the same as no treatment whatsoever'.
page 183: In the Middle Ages, people who felt that life was too demanding could, with societal approval and respect, choose to live in a monastery. Today these people would no doubt be subject to at least a raised psychiatric eyebrow, and possibly to degrading internment in a mental institution.
page 30: Beatings, shock therapy, or, in mental hospitals, surgery - whatever the intent of staff in providing this service for some inmates - may lead many inmates to feel that they are in an environment that does not guarantee their physical integrity. [1. This extract seemed to eclipse all the others in the art of understatement.]At this point in Mr Peter Pain's reading the Judge interrupted.
page 39: This knowledge of shock therapy is based on the fact that some of the patients in ward 30 have assisted the shock team in the administration of therapy to patients, holding them down and helping to strap them in bed, or watching them after they have been quieted. The administration of shock in the ward is often carried out in full sight of interested onlookers.
page 54: The punishments which can be applied by the ward attendant are suspension of all privileges, psychological mistreatment such as ridicule, vicious ribbing, moderate and sometimes severe corporal punishment, or the threat of such punishment, locking up the patient in an isolated room, denial or distortion of access to the professional personnel, threatening to put or putting the patient on the list for electro-shock therapy, transfer of the patient to undesirable wards, and regular assignment of the patient to unpleasant tasks such as cleaning up after the soilers.
'Is this in America or in this country?' he enquired.
'My Lord, this is in America,' said Mr Pain.
The Judge nodded. He had copies of all these affidavits and was following the reading of them very closely. He never failed to correct the smallest misreading as Counsel hurried along. It is a procedure that must always make the layman, sometimes perhaps even the lawyer, wonder what purpose is supposedly being served. No official shorthand-writer was present. The one press representative there seemed uninterested.
The Court was wired for tape-recording and microphones were installed at strategic points - but the apparatus was not even switched on. The sacred principle of 'open Court' was being observed, the typewritten words in the affidavits were actually being vocalised, and if anyone had wanted to take them down, he could. The Judge made an occasional note, Junior Counsel and solicitors' articled clerks made theirs; but verbatim report there was none. Mr Pain pressed on with Professor Erving Goffman:
page 152: On the worst ward level, discreditings seem to occur the most frequently in part because of lack of facilities, in part through the mockery and sarcasm that seem to be the occupational norm of social control for the attendants and nurses who administer these places.Mr Justice Megarry looked up again. 'All this, of course,' he said, 'is one side of the effects of this sort of treatment. Can one accept these extracts as typical of even what these authors believe? What is being put forward here is their critical side?'
page 299: Even in the case of a brain surgeon who may expect to lose half his cases, clients can be made to see that this is merely a chancy, last resort department of medicine made tolerable by the probability of effectiveness achieved in many of the other departments.
'My Lord, yes,' said Mr Pain.
'It's always the problem with extracts,' the Judge went on, 'as when you are drafting an affidavit and wanting to keep it short. This is a collection of adverse speeches rather than a collection of adverse judgments. I'm just wondering what view of the law one would get by that process?'
Again Mr Pain assented, and seemed to shrug, though he may have been merely settling his gown on his shoulders. As if in confirmation of the Judge's reminder that some of these writers were citing technical criticisms that called for an answer, Mr Pain went on to Drs Sargant and Slater and their Introduction to Physical Methods of Treatment in Psychiatry:
page 97: Even modified forms of leucotomy must produce some alteration of the personality to be of therapeutic value. Some of these changes may be undesirable, especially after the more extensive operations. ... The more subtle powers of the intellect, such as its intuitions and imaginative qualities, may sometimes be affected detrimentally; and if the patient shows little sign of this in his day-to-day behaviour, it may be because the daily routine of his existence makes little call on his best powers. There is usually some reduction of self-criticism, and if there is too much it may lead to tactless and inconsiderate behaviour and the too immediate translation of thought and feeling into action.Mr Pain went on to read a quotation from Meyer and Beck on Prefrontal Leucotomy and Related Operations (1954):
Thus it would appear that only 102 of 206 leucotomised patients survived the operation by five months.... However, if survival is not the criterion then one should perhaps use the success rating of the researchers:The Judge here interrupted again. He seemed unconvinced that any of the patients could have lived ten years without treatment.
++ = Social Recovery.
+ = Marked Improvement.
-+ = Slight Improvement.
- = No Improvement.
The results were:
++ = 6
+ = 18
-+ = 38
- = 40
Of the six 'social recoveries', one committed suicide, one was a twenty-six-year-old who survived only nine months, none survived ten years.
'What does all this tell us?' His Lordship asked, 'unless one knows what would have happened if they hadn't had this treatment? It gets one nowhere.'
But Mr Pain pressed on, quoting next from a 1965 paper by Professor Thomas Szasz called Whither Psychiatry?:
Even today similarities between the therapeutic morality of totalitarian politics and of mental hygiene are curiously neglected. ... The gospel that men like Meninger, Laswell and others were preaching was arrogant and grasping. They claimed that Lord Acton's famous phrase could be amended to read 'Power corrupts, and absolute power corrupts absolutely, except psychiatrists ...'Professor Szasz was quoted at greater length than anyone, but the foregoing extract epitomises what he was called upon to say, and it was difficult to imagine that he, at any rate, was thus passionately presenting one view of psychiatry in order to follow it up with an equally passionate presentation of another.
The history of institutional psychiatry is largely a tragic tale of deliverance of 'insane persons' by their 'sane' relatives, or in recent times 'sane' society, into the care of psychiatrists for tortures called treatments.
Mr Pain also read some extracts from Dr Pauline Morris's book Put Away (Routledge & Kegan Paul, 1969), a harrowing expose of a kind only too familiar in recent years:
We have already pointed out that infrequent visits by medical superintendents to subsidiary units often resulted in their having little or no personal contact with the patients. ... Sometimes the medical superintendents, themselves, believed in punishments, but more often they said they allowed punishments to be carried out because the nursing staff demanded it. ...'I notice', said Mr Justice Megarry, 'that a very great deal of this seems to be by "Doctor" Pauline Morris; and she's a lecturer in Sociology at the Borough Polytechnic?'
It is interesting to note this widespread use of drugs as an alternative to sanctions (often at the instigation of the nursing staff who 'recommend' to the doctor that a patient be sedated), since it suggests that the use of tranquillisers and similar drugs may be more custodial than therapeutic; and the idea is to quieten the patient and stop 'bad' and disruptive behaviour, not to cure him, nor to find out why he behaves in this way. ...
'My Lord,' replied Mr Pain, 'it is not suggested that she is a doctor of medicine. Her book was the outcome of a sociological research project.'
And there were numerous prolonged readings from other writers, mainly medical, the burden of which may perhaps be moderately expressed in a final quotation, from the preface to Richard Hunter and Ida MacAlpine's book Three Hundred Years of Psychiatry (1961):
Despite all that has been said and written, psychiatry does not possess a body of exact and established knowledge, on which all can agree, comparable with medicine. Rather it consists of attitudes, concepts, theories and therapies from which each doctor selected what accords best with his predictions; so that one is tempted to say there is not one body of psychiatry but many psychiatrists.
'All this', he said at one point in the argument, 'is on the footing that they were not entitled to have Article 7 there in any case. ... But I'm still far from clear about that. What is a company to do if it is limited by guarantee and is not covered by any of the specimens in Table "C"? Are they not entitled to make up their own Article 7?'
'My Lord,' said Mr Pain, 'they do so at their peril.'
The implication seemed to be that they would find themselves in the kind of trouble now besetting the NAMH, but Mr Justice Megarry plainly thought this was prejudging the issue he had to decide.
'If you have a company formed fifty years ago,' he said, 'and some question arises today about one of these articles not to be found in Table "C" of the Companies Act, then are you saying that evidence has got to be produced to show why? Suppose we started off with Article 1 - that gives the definition of the Council of Management. There's nothing like that in Table "C" either?'
'Article 7, my Lord,' said Mr Pain, refusing to be drawn on Article 1, 'is repugnant to the whole conception of a company limited by guarantee.'
They considered many past judicial decisions about the validity of companies' articles and terminations of membership; they talked of golf clubs, trade unions, the Stock Exchange (which expelled a member in 1919 because he had a German name), insurance societies, the Showman's Guild, the Film Artistes' Association - all of which had expelled members and had then been challenged in the Courts. (The 'Film Artistes' case was about a man living in the Channel Islands during the German occupation in 1942. He stole a German bicycle in circumstances that almost entitled him, you might have thought, to a medal. A German court convicted him of theft and sent him to a concentration camp. And because of this 'criminal conviction', the Film Artistes' Association refused to enrol him as a member when he came to England after the war.) And after all this -
'Well,' said the Judge, 'membership of a guarantee company can cease. But how? One way is by resigning. Or membership can cease automatically on non-payment of dues, or death or bankruptcy.'
Mr Pain agreed. 'It may be', he said, 'that a third way is by compulsory retirement for misconduct. But my submission is that it cannot cease by the arbitrary exercise of the power to expel members - that is completely alien to the concept of a company limited by guarantee.' Mr Pain had marshalled his four main points in this way:
On point one, Mr Pain drew the Judge's attention to some of the consequences of expulsion. There were the expelled member's 'hurt feelings', his loss of the two-guinea membership fee, and the fact that his liability as a 'guarantor' of the Association would continue for another twelve months although he was no longer a member. Mr Justice Megarry seemed to think the worst of these was the loss of the two guineas.
- Article 7 of the NAMH Articles of Association ought to have been drawn up in conformity with Table 'C' of the Companies Act 'or as near thereto as circumstances permitted'.
- Even if not, its operation in the manner used against the scientologists was contrary to 'natural justice' - a member must surely be entitled to a hearing before being asked to resign.
- A Member of the NAMH doesn't cease to be a member when a resolution is passed expelling him; he remains a member until he can appeal, and, if he does appeal, until the appeal is disposed of.
- The NAMH Council of Management are trustees of their power for the benefit of the Association as a whole, and the exercise by these thirty people of their power was not in accordance with that principle.
'The articles do provide', he said, 'that a member can be repaid his subscription. Has repayment been proffered?'
'No, my Lord,' said Mr Pain.
'So 300 people have ceased to be members after only a month, and the Association has kept the money?'
'Yes, my Lord.'
But this seemed a little odd. The question whether the 300 had 'ceased to be members' was what the case was all about. If they had not, their money could not be returned anyway. If they had, there had as yet been only one application for the return of it, and this was in abeyance. The scientologists were probably the last people who wanted such a gesture of finality. But the subject came up several times, and the Judge referred to it again in his judgment - in fact he made it his very last word.
On the second point, the violation of 'natural justice', there was a long and interesting discussion, of the kind that may be said to illustrate English legal argument at its best. 'Natural Justice' is the lawyers' concept of what the ordinary man calls fair play, though it is by no means what the ordinary man always wants or likes when he gets it; and by long practice in the Courts it has acquired a form and a body of rules which Earl Jowitt defined thus in his Dictionary of English Law:
The rules to be followed by any person or body charged with the duty of adjudicating upon disputes between, or upon the rights of, others. The chief rules are to act fairly, in good faith, without bias and in a judicial temper, and to give each party an opportunity of adequately stating his case.And as the many extracts from past judgments were read out in Court, laymen present might have thought they heard, as a layman's view of Natural Justice, echoes of Thomas Henry Huxley's careful statement of 'moral duty', which, he wrote:
consists in the observance of those rules of conduct which contribute to the welfare of society and, by implication, of the individuals who compose it. The end of society is peace and mutual protection, so that the individual may reach the fullest and highest life attainable by man. The rules of conduct by which this end is to be attained are discoverable - like the other so called laws of Nature - by observation and experiment, and only in that way.Mr Pain adopted the concept of 'Natural Justice' that appears in Citrine's Trade Union Law, which states it as follows:
In the absence of a clear intention in the rules that the power is absolute or arbitrary, it will be deemed to be of a quasi-judicial character and, in addition to compliance with the rules, the 'principles of natural justice' must also be observed in its exercise, except, it is submitted, in so far as those principles are clearly excluded by the rules themselves.It was while all this was under discussion that the Judge asked to be reminded how anyone became a member of the NAMH and put himself at risk of dismissal.
These principles involve three essential requirements. First, that the member knows the charge he has to answer; secondly, that he is given a proper opportunity of answering it and a fair hearing; and thirdly, that the decision arrived at is an honest one.
'If he fills in a form of application and pays L2.10 is he automatically a member? I mean, is any mind applied to the question of his admission?
'My Lord,' said Mr Pain, 'I think one should look at Article 3.'
The Judge looked at Article 3. 'Council has an absolute discretion ...' he murmured, 'need give no reason ... But if they admit 327 people like this, and then a month later they decide to push them all out, it's rather an odd thing to do? I mean, to let them in and then push them out and keep their money?'
'My Lord, yes,' said Mr Pain.
Later the Judge asked him whether he was saying that what was done was dishonest and in bad faith. 'Or was it done honestly and in good faith?'
'Honestly and in good faith, my Lord, and without guile. I think they were confused.'
'Confused certainly, rather than dishonest?' His Lordship was clearly thinking still about those membership fees. It was noteworthy that no one else, certainly not the scientologists, had raised any complaint about the unreturned fees. There were times when Mr Justice Megarry almost made it seem like an action for fraud.
'Well, intellectual dishonesty, my Lord,' said Mr Pain. 'But the money was really a trifle. I suggest that they were not applying their minds to the problem.' And he went on to advance his final argument on the question of Natural Justice.
'The matter is not to be limited', he said, 'by any contract. The principles of Natural Justice apply always, whatever any contract may say. The fact that there is no specific finding of misconduct matters not. In some cases, as in the case of Lawler v. The Union of Post Office Workers (1965, Ch. 712) there may be something in the Rules to exclude Natural Justice. But even if that were effective, which I submit it is not, there was no such provision here. Natural Justice was breached in this case ... I turn now to my third point.
'When does a member cease to be a member? Not, I submit, when a resolution is passed to expel him. He will remain a member for another seven days or until his appeal is determined. So it was wrong to exclude these people from the AGM. The only possible alternative is that the expelled member does cease to be a member but is reinstated ab initio if his appeal is successful.'
'Suppose he resigns,' said the Judge. 'When does his resignation take effect, when it's posted or when it's received?'
'When it is received.'
'And then suppose he's requested to resign by resolution of the Council? You see, I think there's this difference between Article 7 (a) and 7 (b). The word "forthwith" is unnecessary to (a), because that makes membership cease "upon receipt of the notice by the Association". It's only in (b) that "forthwith" is required. Look at them together.
'A member of the Association shall forthwith cease to be a member
(a) if he shall resign by giving notice in writing to the Association of his intention so to do, in which case he shall cease to be a member upon receipt of the notice by the Association.'So "forthwith" relates to (b) only? But it still leaves the matter far from clear,' the Judge continued. 'How can you "request" somebody to do something if he never hears of it? It's a Resolution by the Council. If that's made on a Tuesday, the notices won't be prepared until the Wednesday and the affected members won't get them until the Thursday.'
(b) if he requested by resolution of the Council to resign; but so that a member so requested to resign may, within seven days after notice of the resolution shall have been given to him, by notice in writing to the Secretary of the Association appeal against such resolution to the Association in General Meeting, in which case the Council shall with all reasonable dispatch convene a General Meeting to consider the matter, and in the event of the appeal being successful the resolution requesting the member to resign shall be void ab initio.
'Quite, my Lord,' said Mr Pain. 'And if you request someone to resign, the resignation won't be effective until he says "All right, I do resign." And in my submission it's just defeating ordinary language to say this Article deprives someone of membership "forthwith" if he's determined to appeal.'
'The effect of allowing the appeal is to withdraw the request?' the Judge asked.
'The language is not clear one way or the other,' answered Mr Pain, with a justification that may commend itself to the reader as he studies Article 7 (a) and (b). 'I submit it would be right to say that the members do not cease to be members pending their appeal. And that, my Lord, is my third point. May I now move on to my fourth -'
'I think I would just like to take you back for one moment to Natural Justice,' said the Judge. 'Is there any authority to help one in applying the concept of Natural Justice to the Articles of a company limited by guarantee?'
'Not that I have been able to find, my Lord.'
'My fourth point,' Mr Pain resumed, 'is that the Council of the NAMH are trustees of their power for the Association as a whole [1. By which, presumably, Mr Pain meant that they were Trustees of the new scientologist members' interests as well as those of the non-scientologists.], and that in this matter they did not so act. Your Lordship will remember from Lord Balniel's affidavit that their basic reason was said to be "the threat that scientology posed to the Association and all it stood for".'
'In fact,' said the Judge, 'only 167 of the 302 expelled members have appealed, is that right? So the Association expelled about twice as many as were "organised" scientologists. It looks like a panic measure.
'One of the mysteries of the case', went on Mr Justice Megarry, 'is why all these people were admitted without enquiry. The NAMH knew about the scientologists, they had got two Resolutions from them - why didn't they stop it all earlier?'
Mr Pain agreed. 'No effective attempt has been made by the defendants', he said, 'to explain all this.'
'Might they not regard a couple of dozen scientologists as a nuisance,' prompted the Judge, 'but 215 as a threat?'
'Yes indeed, my Lord. But why did they admit that 215?'
Mr Justice Megarry sighed and sat back. 'Ah yes, I know,' he said. 'We must keep on coming back to that. It's the most baffling feature of the case.'
'Perhaps', said the judge, 'Mr Pain is anxious to be the first. There always has to be a first time.'
'My Lord, I submit that it is powerfully in my favour that this point has never been taken, and that it shows my learned friend to be wrong.'
In the absence of anything in the NAMH articles, there was no requirement that the expelled members be given any reason for their expulsion or any opportunity to challenge it at any kind of hearing. An expulsion need not import any misconduct on the part of the expelled member; and a whole group of members could be asked to resign owing, for example, to overcrowding. There was no law to say that this could not be done without an 'enquiry'. And Mr Neill went through, one by one, the many recorded decisions of the Courts which had been cited by Mr Pain - and some of which, as we have seen, were actually against him anyway.
'My learned friend's highest point', said Mr Neill, 'was that it was odd that we should let them all in in October and kick them out in November. Thus, he says, we were acting in bad faith. My Lord, we are a charity, we are not detectives. But something happened on 7 November.' (Mr Neill referred to the affidavit of Lord Balniel and its story of how a girl from a solicitors' office was sent to the NAMH to hand in the seven scientologists' nominations.) 'In practice this was on the last available day - the Friday. It is perfectly plain what was happening - they'd get on to the Council: the Association couldn't adjourn the AGM and there was no proxy-voting. This was a serious threat to the Association.' Mr Neill read long extracts from Lord Balniel's affidavit and Dr David Clark's to confirm what he said. 'No application has been made, my Lord,' he said, 'to cross-examine Lord Balniel or Dr Clark in this respect.'
But the Judge seemed to wish they had been cross-examined, especially about the flood of new members. 'How did so many get in?' he asked once again. 'And why were they only slung out when they put forward resolutions?'
'Folly in October', replied Mr Neill, 'is no evidence of bad faith in November. With hindsight, of course, we know what was going on.
The Judge came back more than once to the question of the non-returned subscriptions. 'I'm still concerned about that,' he told Mr Neill.
'Your Lordship appears to attach more importance to it than Mr Pain does,' was the reply. 'There is no complaint in the evidence about it. There is nothing to show that at the Council's meeting the Council directed their minds towards it. There has been one request for money back (it's not in the evidence) and the applicant was referred to Article 9.'
And this is what Article 9 says:
9. No member or associate on ceasing to be a member of associate shall be entitled to be repaid any subscription to the Association previously paid by him or any part of such subscription.'If the plaintiffs are right,' Mr Neill went on, 'then they remain members and there is no question but that the Association keeps their subscriptions. This action has involved the defendants in very great expense, and that should I submit be taken into account when dealing with this question of returning subscriptions. But the time to consider the fate of the subscriptions has not arrived.'
He concluded his address with a resume of the scientologists' reasons for seeking the 'interlocutory relief' that was the reason for the motion.
'The relevant right for relief', he said, 'is the continuation of their membership, and the likelihood of success on the membership issue'. What had to be considered was the effect on the Association if the plaintiffs won; the voting position at meetings; the irrecoverable losses of legacies, donations and other support; and finally the fact that the scientologists were still in the position of suing the Association for libel. 'If relief is not granted' (i.e. if the scientologists' present application failed), 'the Association can get on with their work, the plaintiffs can prosecute their appeal - or they can prosecute this action.[1 When this book was being written it was not known whether the dispute would ever reach the stage of a full action.] If they win their appeals they are in. If not they can re-apply for membership. If they win the action, then they will have been kept out only for a time. This, my Lord, is a charity; and the Court of Equity is traditionally its guardian. If all other things are equal, the Court should not grant relief against a charity.'
'My clients', he said, 'would be prepared to give undertakings that no further step be taken in either of the pending libel actions against the defendants until the conclusion of the proceedings in this motion - in the event of this motion being successful. And if they were successful in the action as well, then they would take no further step in either libel action - subject to a caveat as to costs.'
There seems to have been no response to this offer, and indeed no more was heard of it - or of its supposed relevance to the question before the Court. Mr Pain went on to renew his attack on No. 9 of the NAMH Articles of Association. 'It is repugnant', he said, 'to the whole nature of a company limited by guarantee without share capital. The defect of Article 7 (b) is more than a defect of form, it is a defect of substance. Where does one draw the line? I say that the closest analogy is with a company having a share capital. I submit that there is a great difference between companies with and without a share capital. My learned friend's authorities were all concerned with companies limited by shares; they were not applicable to divesting a member of his membership of a guarantee company. Why? My Lord, because a shareholder has his property, his shares -'
The Judge interrupted. 'But he's also a member of a company, and so is a member of a guarantee company.'
'My Lord, a member of the defendant Association has membership and no more. It can be snuffed out in a moment. Where a person owns shares he won't cease to be a member unless his shares are transferred to somebody else or forfeited. A guarantee company is nearer to a Trade Union or an unincorporated association, and this is a field where Natural Justice applies.'
'Is it having the shares, then,' asked Mr Justice Megarry, 'that makes you vulnerable?'
'No, it's having the shares that protects you' (and Mr Pain referred to section 210 of the Companies Act). 'If a resolution is passed requiring him to transfer his shares, he will remain a member until he has in fact transferred his shares. In the case of a guarantee company the member has no shares, and so is out immediately. If my clients had shares, then they could complain under section 210 of the Companies Act. In my submission this distinction is important. The NAMH fits in more easily with Trade Unions and unincorporated bodies than it does with share companies. And apparently there is no authority about such bodies, either way.'
This was the end of the fourth day of the hearing. Resuming at 10.30 next morning, 6 March, Mr Pain suggested a number of other ways in which minorities could obtain redress within companies to which they belonged-'by which a member can assert himself if oppressed'. He could demand an extraordinary general meeting, he could demand a poll, he could object to some alteration of class rights, he could ask for a Board of Trade enquiry. 'The fact that these rights exist, and cannot be exercised by someone expelled, means that this sort of guarantee company can be equated with a Trade Union.'
The Judge indicated at this point what were the circumstances in which a Court would interfere to protect membership rights. 'When it is a matter of livelihood,' he said, 'then the Court departs from its normal rule and interferes. Livelihood, and property - these are the two spheres where the Court will interfere.'
'Quite so, my Lord,' said Mr Pain, 'and I submit that rights of membership are property rights. And if a body exercises a discretion whether to deprive a member of the rights of membership, then its function is quasi-judicial and it acts as a tribunal. If it is exercising rights about membership as a whole, then its function is administrative.'
He explained, as a rejoinder to what Mr Neill had said, why he had not cross-examined Lord Balniel on his affidavit. 'I accept it as truthful as far as it goes,' he said. 'There was no need to cross-examine. The Council of the NAMH knew what it was doing, but didn't appreciate the consequences. Or else they made a mistake and tried to put it right - but Lord Balniel doesn't say that.'
Mr Pain referred again to the question of the scientologists' subscriptions. 'We don't want the subscriptions back, my Lord,' he said categorically; 'we want membership. And this was no "take-over bid". There was certainly to be a bid by the plaintiffs to get their voices heard. Nothing had led them to think they'd meet with the success the Council say they did. At the end of September the NAMH had 1,776 members, plus or minus fifty. If 150 or so scientologists join a body with 1,750 members, they are outnumbered twelve to one.'
'But a hundred London scientologists', said the Judge, 'will be more eloquent than 1,000 country members.'
'My Lord, we had no idea of the fear that all this could strike into the other faction. The Plaintiffs assumed that Mr Mayhew would be elected. ... My clients have, I submit, a good prima facie case for the relief that they are seeking.'
The Judge made short work of Mr Pain's contention that the word 'forthwith', as applied to a resignation or dismissal, could not mean 'immediately' (see pages 135 and 136). There was nothing in the point, said his Lordship, 'save a demonstration of the ingenuity of Counsel'. He also decided that the Association's Council of Management, in dismissing the new members, had acted 'in good faith and in what were believed to be the best interests of the members as a whole'. Mr Pain had stressed the illogicality of arguing that the scientologist members were part of 'the whole' whose interests were thus being safeguarded; but the Judge was now deciding that they ceased to be members the moment the Council said so, and 'the whole' thus meant the original membership with the scientologists subtracted.
His Lordship expressly disengaged himself from any pronouncement whether the scientologists or the psychiatrists were 'right' in what they said about each other; and the psychiatrists said to be raping and torturing their patients and running death-camps waited in vain to hear the Judge say he didn't believe it. His Lordship made no reference to the fact that there were even psychiatrists who seemed to have reached the strange conclusion that both were right. He observed mildly that the language in which the scientologists had for so long been attacking the Association 'could not be described as moderate and reasoned argument, designed to persuade those who hold what are conceived to be erroneous views'. And, when you come to re-read those attacks, his Lordship could have said that again.
As to 'natural justice', he thought that this elusive legal beneficence was totally excluded from the case before him. He referred to the Jockey Club case of 1948 for evidence that the power to suspend a jockey's licence 'in the Steward's absolute discretion' was a power that transcended 'natural justice'; and so was the power taken by the NAMH in its Article 7 (b).
'The exercise of this power is one in which the question may arise not only whether it is to be exercised, but when'; and it might be necessary to act with such speed that 'natural justice' could have no place in it. But the Judge would say no more than that he found 'a substantial body of authority in support of' the NAMH.
'There are some authorities the other way. But on the view that I take of this case that does not, I think, affect the result.
'For this is a motion for interlocutory injunctions, not the trial of the action; and there is a limit to which, "on motion", it is right to attempt a final resolution of a difficult point of law. ... It follows that in my judgment the injunctions sought must be refused. If I am wrong in that, then I consider that the injunctions should be refused as a matter of discretion. For I do not regard the plaintiffs as having shown a strong prima facie case for the existence of the right claimed, or that they are likely to succeed.'
We end, therefore, at the point where the scientologists had been refused the High Court injunction which would have established them as NAMH members who had never been effectively required to resign. They gave notice of their intention to challenge Mr Justice Megarry's ruling in the Court of Appeal, and then withdrew it. They also gave notice of their intention to pursue, in due course, their claim to the High Court declaration which Mr Justice Megarry had denied them as an interim measure - their intention, that is to say, to proceed to the full trial of the action; and this they had not withdrawn when this book went to press. But neither did they withdraw the 181 individual notices of appeal against dismissal which they had severally served upon the Council of the NAMH. And these were considered at an Extraordinary General Meeting of that Association on 2 July 1970, at the Royal Society of Medicine, No. 1 Wimpole Street, London.
It should be recorded that forty-nine of the new members thus required to resign had since satisfied the Council that they were in no way connected with the scientology movement; and these forty-nine had been reinstated. That left 253 dismissed members, of whom only 181 were appealing. It must be assumed that the remaining seventy-two were indifferent as to the outcome; and each of them, as in the case of the unsuccessful scientologist appellants, had his subscription duly returned.
At the Council Meeting on 2 July, the 181 appellants' letters of objection (most of which contained significantly identical phrases) were individually voted upon. Some of their writers were elected to membership and some not; all their names and addresses were printed in the agenda, as were the terms of any letters by which they were supporting their appeals against dismissal. Of these, some from the scientologists were very long and (fairly enough) propagandist. Other letters stated rational grounds for being classed with the forty-nine who had already been reinstated, and of these the following was typical:
Dear Miss Applebey,A small number of known scientologists went to the meeting. One of these, a member of the NAMH, wrote afterwards (in a letter to Saint Hill Manor) that it was 'a depressing experience altogether'. He added:
Thank you for your letter dated 15 May. Under the circumstances clearly explained in your circulars I quite understand that the Council had no other alternative than asking for the resignation of members who joined at the specified dates. That, naturally, included me.
As I have said in previous correspondence I never attended a single meeting of the scientologists, have never been associated with any one of them - let alone expect or accept that any of them would represent me under any circumstances. Indeed the only contact (very indirect at that) I had with this movement was the knowledge about their existence and some of their beliefs and attitudes through some unfortunate patients who came under my care as a psychiatrist.
Needless to repeat what you know about me (at least from the medical directory). I am a consultant psychiatrist and a member of the British Psycho-Analytical Society. Am I naive to think that I cannot imagine a member of this Society or anyone holding the post I hold having any truck with this cult?
I don't know if any of you will feel like renewing your applications for membership, though in some ways I hope you do - if only to find out just where the NAMH does stand vis-a-vis reform. As it is I've just written to the General Secretary, urging her not to allow the Association's rejection of you as persons to prevent them from adopting some of your ideas (such as the Bill of Patient's Rights).I just hope that something constructive can be salvaged from such an unedifying saga.The Association's AGM was duly held - the following day. the new officials were appointed. But this was not, as it transpired, the final act in the 'unedifying saga'. During the next annual conference of the NAMH at Church House, Westminster, on 25 February 1971, the scientologists fired another shot in a campaign that looked like continuing regardless of cost.
As for yourselves I hope you will not allow the rejection to embitter you too much and I wish you strength in the fight for human rights.
During the morning session, just as the 1,100 delegates were settling to listen to a short tape-recorded discussion played from the platform, another tape-recording started up in some other part of the hall. It proved to be coming from a bowl-shaped electric light fitting in the press gallery, which contained a tape recorder, an amplifier and three loudspeakers. It was stopped before its purport could be generally heard, but it was an attack on electro-convulsive therapy and other 'violent' physical treatments for mental disorder. The apparatus was described by an electrician as 'extremely sophisticated - it could have been switched on by radio, and by anybody in the audience' (Evening Standard, 26 February 1971). The whole installation was confiscated, passing into the possession of the NAMH as a useful addition to office equipment. Mr David Gaiman, according to the same newspaper, said it was he who recorded the 'message' and that he was 'delighted it served its purpose and interrupted the proceedings'. Everyone, therefore, seemed to have a sense of gain from this essay in mechanical heckling; and the curtain seemed to have descended at last on what had seemed to many people a time-wasting, ludicrous and distasteful engagement. The letter I have quoted is sufficient to suggest that that was not how everyone saw it; that the scientologists still retained some seemingly intelligent and certainly literate support; and that, accordingly, the field of mental health and 'human rights' was likely to remain, if not a battlefield then a field of guerrilla warfare. Because of its specially poignant possibilities, it is a field where the Duke of Wellington's lugubrious words seem wryly appropriate: 'Nothing except a battle lost can be half so melancholy as a battle won.'
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