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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Barry, R (On The Application Of) v Liverpool City Council [2000] EWHC Admin 321 (7 April 2000)
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Cite as: [2000] EWHC Admin 321
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Case No: CO/1770/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Liverpool Crown Court
Queen Elizabeth II Law Courts
Liverpool L2 1XA
Friday 7th April 2000
THE HON MR JUSTICE MAURICE KAY
REGINA |
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LIVERPOOL
CITY COUNCIL |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
__________________________________
Mr Vincent Fraser (instructed by Liverpool City Council for the Respondent)
Mr John de Bono (instructed by Kilner Polson for the Applicant)
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE MAURICE KAY: Liverpool City Council (the Council) is the licensing authority for the grant of public entertainment licences within its area pursuant to section 1 and schedule 1 of the Local Government (Miscellaneous Provisions) Act 1982. Such licences are required for "public dancing or music or any other public entertainment of a like kind" (schedule 1, paragraph 1(2)). Currently, there are over three hundred and fifty such licences in respect of premises in Liverpool. They customarily have door staff who control entry to and security on the premises. For some years there has been concern in Liverpool and elsewhere about the quality of door staff on premises with public entertainment licences. This is apparent from Home Office and Police studies and is summarised in the present proceedings by Mr. Culkin, a solicitor employed by the Council, in his affidavit:
"In recent years there has been a marked tendency for organised criminals to seek to control door staff on licensed premises. This has led to violence both within licensed premises and outside. The control of door staff has been seen as a means for controlling the supply of illegal drugs within licensed premises and has also involved other illegal activities such as extortion and money laundering."
Between 1990 and 1992 the Council engaged in a consultation exercise with licensees, their solicitors and the Merseyside Police. As a result, the Council resolved to impose a condition in public entertainment licences from 1 December 1992 which required a licensee to maintain on his premises a register of all security staff employed at the premises and to make the register available for its inspection during licensed hours by appropriate officers of the Council and the Police. This scheme was not successful. The licensees accepted that it was not possible for them to operate a successful registration scheme. Accordingly, in December 1995 the council resolved to impose a new condition on public entertainment licences which was based upon registration of attendants and security staff not by the licensees but by the Council itself. The most important part of the condition was in these terms:
"The licensee .....shall ensure that no person is employed, engaged or present as an attendant/security person in or about the premises unless they have been registered for such purpose by Liverpool City Council prior to commencement of their duties."
Later in December 1995 a Home Office Circular 60/1995 published guidance for such registration schemes. The scheme which the council had resolved to adopt did not conform in all respects with the guidance in the Home Office Circular. Accordingly, there followed a protracted period of reconsideration and further consultation. All this received extensive coverage in the local press and in the trade press. During this period, many other local authorities in the surrounding area and much further afield adopted and implemented such schemes. Eventually the council adopted the final version of a scheme which was implemented as and when each public entertainment licence came up for renewal after March 1998. The Council's Licensing Officer wrote to all licensees in the following terms:
"The City Council is to start registering all attendants and door staff required as a condition of your public entertainment licence as from 1 April 1998.
In order to comply with the licence condition you should ensure that any attendants or security staff you employ apply for registration with the local authority as soon as possible. To assist you a copy of the council's guidance notes on the scheme are attached. "
The scheme has operated with widespread acceptance. In the twelve months from April 1998 to March 1999 the council received 865 applications for registration. Of these, 721 were approved. 72 were still under consideration at the end of the year. 52 met with refusal when not approved by the Police. Of those 52, 32 availed themselves of a right of appeal to an Appeals Panel and 18 of the appeals were allowed.
The Applicant is a self employed door attendant who works at an establishment in the City centre known as the Beluga Bar. On 15 September 1998 the Council's Licensing Officer wrote to the licensee of the Beluga bar in the terms to which I have referred. Soon after receiving the letter, the licensee passed it to the Applicant. The Applicant opposes the registration scheme. I shall have to return to the chronology which followed his receipt of the letter. It resulted in his lodging an application for permission to apply for judicial review on 5 May 1999. When the application for permission came before Mr Justice Turner on paper he directed that it should be renewed in open court upon notice. The Form 86A seeks to challenge a decision of the council to impose a mandatory condition for the grant of public entertainment licences that all attendants and door staff be registered with the Council and in particular a decision "on about 15 September 1998 to start registering attendants and door staff under the said condition". In its original form the relief sought is certiorari in respect of the condition and the latter decision and/or an order of prohibition to prevent the condition or registration from being implemented.
The test to be applied upon an application for permission.
At the hearing of this application for permission, which occupied virtually a full day, I had the benefit of detailed submissions on behalf of both parties. In addition to the evidence relied upon by the Applicant, there is an affidavit on behalf of the Council with 260 pages of exhibits. In these circumstances Mr. Fraser submitted that the appropriate test is not whether the Applicant's case is arguable but whether it reaches the higher threshold referred to in Mass Energy Ltd. V. Birmingham City Council [1994] Env. L.R. 298 where Glidewell LJ said (at pp 307-308):
".....we have most, if not all. of the documents in front of us; we have gone through the relevant ones in detail - indeed in really quite minute detail in some instances - in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents.......[I]n my view, the proper approach of this Court in this particular case, ought to be - and the approach I intend to adopt will be - that we should grant leave only if we are satisfied that Mass Energy's case is not merely arguable but is strong; that is to say, is likely to succeed."
See also Scott LJ at p. 311 and Evans LJ at p.318. Although their Lordships were considering the matter in the Court of Appeal, there is no reason why, as a matter of principle, the same approach should not equally apply in appropriate cases at first instance where permission is sought: see Regina v. London Docklands Development Corporation, ex parte Sister Christine Frost (1996) 73 P+CR, 203. In my judgment, the present case is such an appropriate case and I shall apply the test propounded by Glidewell LJ, where appropriate.
I should add that, as the hearing progressed, I canvassed with counsel whether I should simply treat it as a substantive hearing on the basis that all the evidence was before me and I was hearing comprehensive submissions. Such a course was supported by Mr. Fraser but Mr. de Bono, whilst accepting that I had the power so to proceed as a result of my case management powers, urged me not to do so on the basis that, if the application proceeds further, he would wish to seek further information about the scheme and its operation from the Council under Part 18 of the Civil Procedure Rules. Although I am sceptical about the potential of such information, I have decided to treat this as no more than an application for permission, albeit one to which the Mass Energy approach is appropriate. With this in mind I shall turn to the grounds of challenge. Not all of them were spelt out in the Form 86A but I agreed to hear them nevertheless.
Is the creation of a scheme ultra vires?
In creating the scheme, the Council has sought to use powers which arise under Schedule 1, paragraph 11 of the 1982 Act which provides:
"The appropriate authority may make regulations prescribing conditions applicable to all, or any class of, entertainment licences, that is to say terms, conditions and restrictions on or subject to which such licences, or licences of that class, are in general to be granted, renewed or transferred by them"
Mr. de Bono submitted that that provision, which exists to enable general conditions to be applied to entertainment licences, does not provide a basis for an authority to regulate by registration doorkeepers who are not parties to such licences. He referred to the scheme as having been "introduced by the back door", adding that it is of a type which had not been envisaged at the time when the 1982 Act came into being. In this connection he referred to the contemporaneous Home Office Circular 62/1982. That document described the purpose of the public entertainment licensing system as being
"to introduce a uniform system of control to ensure public health and safety over places of public resort and to minimise the nuisance to the immediate neighbourhood."
Mr. De Bono submitted that the scheme, the purpose of which is crime prevention in relation to drugs offences and violence, is not designed to ensure public health and safety and that a power which was conferred for a specific purpose has been resorted to in pursuit of an improper or collateral purpose. Moreover, if Parliament had intended to confer upon local authorities the power to regulate doorkeepers in this way, the Act would have included an express provision to that effect, as it had done, for example, in relation to the licensing of private hire drivers by section 46 of the Local Government (Miscellaneous Provisions) Act 1976.
In my judgment, comparisons with other Acts are even less fruitful than comparisons with other parts of the 1982 Act itself. As Glidewell J said in Regina v. Huntingdon District Council, ex parte Cowan [1984] 1 All ER 58, the different parts of the 1982 Act - public entertainment licences, the control of sex establishments and the provisions relating to take-away food outlets - look very much "as if they have been separately drafted, almost as though they were parts of separate statutes, certainly as though they were separates codes without reference one to the other" (p. 64). Thus, the provisions in relation to public entertainment licences are "a self - contained code" (ibid). In the present case I do not consider it significant that the Act contains no express provision regarding the regulation of doorkeepers. Moreover, the wording of Schedule 1, paragraph 11 is in its terms non-specific, no doubt in order to enable local authorities to respond to changing needs. When such changing needs are considered in the light of Circular 62/1982, I have no doubt that the regulation of doorkeepers is an aspect of ensuring public health and safety. Drug trafficking and violence are clearly inimical to public health and safety. Accordingly, I conclude that it is not even arguable that the Council lack the vires under Schedule 1, paragraph 11, to introduce a doorkeepers' registration scheme in conjunction with a general condition on public entertainment licences.
Is the scheme unlawful as being unduly oppressive?
In submitting that the scheme is unduly oppressive to licensees and/or doorkeepers, Mr. de Bono relied on the following statement of principle from de Smith, Judicial Review of Administrative Action, para. 13-046:
"Official decisions may be held unreasonable when they are unduly oppressive because they subject the complainant to excessive hardship or an unnecessarily onerous infringement of his rights or interests."
The argument was that the scheme is so oppressive and onerous because it infringes the Applicant's right to work and to respect for his privacy.
In my judgment, neither the principle set out in de Smith (the correctness of which I do not doubt) nor the authorities relied upon by Mr de Bono in support of it (Hall & Co. V. Shoreham-by-Sea UDC [1964] 1 WLR 240 and Regina v. North Hertfordshire DC, ex parte Cobbold [1985] 3 All ER 486) have any bearing on the present case because it is not arguable that the scheme is unduly oppressive or unnecessarily onerous, nor that it infringes any identifiable right of the Applicant.
Does the scheme unlawfully fetter the Council's discretion?
Mr. de Bono's next argument was that, in reality, Condition 21 operates as a blanket rule and, as such, is an unlawful fetter upon the discretion of the Council. Clearly there is a legal principle which proscribes the fettering of a discretion in relation to licensing and other administrative and quasi-judicial decisions. However, Schedule 1, paragraph 11 permits the prescribing of general conditions.
It is necessary to refer to some of the evidence regarding Condition 21. Along with all the other standard conditions which have been prescribed by the Council it applies "unless it is expressly excluded or varied by the Council". In his affidavit, Mr. Culkin states that:
"The Council accepts that it will not always be appropriate to impose a standard condition"
He points out that, in respect of Condition 21, the Council has provided delegated authority for a waiver in certain circumstances. These are where premises do not have a Special Hours Certificate, and/or where entertainment is not provided beyond 11.45.p.m., and/or where the total capacity of the premises is less than seventy five persons, and/or the premises comprise a church hall, a community centre or educational establishment. In addition, he states that in other cases an applicant may apply for a waiver of the condition.
In my judgment, it cannot be said that, as a matter of form, the Council have created a fetter upon their discretion. Mr. de Bono's alternative submission was that, whatever the form, Condition 21 operates in practice as a fetter in that, apart from the specific exceptions to which I have just referred, the evidence does not include any reference to an exclusion or variation of it. In the course of his reply Mr. de Bono accepted that he faces an evidential difficulty in relation to this submission. Although he sought to base his submissions on the fettering of discretion upon such authorities as Regina v. Flintshire County County Council County Licensing (Stage Plays) Committee ex parte Barrett [1957] 2 WLR 90, Regina v. LCC ex parte Corrie [1918] 1 KB 68 and Regina v. Barry DC ex parte Jones 1916 TLR 556, those authorities each contained matters of form or practice in the evidence which explain the decisions. Indeed, Mr. De Bono was at pains to point out that it was because of the evidential difficulties that, if permission were granted, he would seek to augment the evidence by the part 18 procedure.
I have to deal with the present application on the material before me. I have come to the conclusion that it is simply not arguable that the scheme operates either in form or in practice as an unlawful fetter upon the discretion of the Council.
Does the Council have the power to charge a fee for registration.
The Council charges successful applicants for registration a fee of £50. The purpose is to cover the cost of administering the scheme. Mr. de Bono submitted that there is no power to impose a charge. He based his submission on McCarthy & Stone (Developments) Ltd v. Richmond upon Thames LBC [1992] 2 AC 48 which concerned a charge levied on developers for consultations relating to speculative development proposals and described as "pre-application advice". The local planning authority sought to justify the change by reference to section 111(1) of the Local Government Act 1972 which provides:
"Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
Lord Lowry, having reviewed the authorities, particularly Attorney General v. Wilts United Dairies (1922) 38 TLR 781 and Hazell v. Hammersmith and Fulham LBC [1992] 2 AC 1, said (at p. 70):
"It is, accordingly, clear that the consideration and determining of planning applications is a function of the council, but the giving of pre-application advice, although it facilitates, and is conducive and incidental to, the function of determining planning applications, is not itself a function of the council.
Thus, it is one thing to say that the giving of pre-application planning advice facilitates or is conducive or incidental to the council's planning functions but it is quite another thing to say that for the council to charge for that advice also facilitates or is conducive or incidental to those functions."
Referring to section 111(1), Lord Lowry said (at pp 70-71):
"The rule is that a charge cannot be made unless the power to charge is given by express words or by necessary implication. These last words impose a rigorous test going far beyond the proposition that it would be reasonable or even conducive or incidental to charge for the provision of a service."
His Lordship adverted to the large number of discretionary functions for the provision of which express statutory authority to charge has been enacted but "would not be prepared to say.......that, in the absence of an express statutory power, there can never be a case in which the power to charge arises by necessary implication". Finally, having observed that the council were contending for a subsidiary power arising under section 111(1) on the basis that it was calculated to facilitate, or was conducive or incidental to the discharge of one of its functions, he added (at p.75):
"To charge for the exercise of that power is, at best, incidental to the incidental and not incidental to the discharge of the functions."
The decision to charge for pre-application advice was therefore quashed.
Mr de Bono submitted that the application of the same reasoning to the facts of the present case points to the registration scheme being unlawful: whereas the licensing of public entertainment is a function, the registration scheme is not - at most it is incidental to that function and the charge is "incidental to the incidental".
Mr. Fraser emphasised that Lord Lowry expressly left open the potential for cases in which the power to charge would arise "by necessary implication". He relied on Regina v. Greater Manchester Police Authority, ex parte Century Motors (CA, unreported, 24 March 1998) in which the Court of Appeal upheld the imposition of a charge upon Automobile Association Developments Ltd and through it upon vehicle recovery operators who participated in a scheme for the recovery of broken down, abandoned and stolen vehicles on behalf of the Greater Manchester Police. Beldam LJ (with whom Schiemann LJ and Sir Christopher Slade agreed) said (Transcript. pp 28-29):
"I turn to consider Century Motors' complaint that the sums which AADL agreed to pay the Authority as a contribution towards the cost of the administration of the scheme and the charges which AADL required vehicle recovery operators to pay as a call out fee or as a handling charge are unlawful. I agree with Popplewell J that they are not.....
The agreement only requires recovery operators who join the rota to pay the handling charge and the charge imposed by AADL for inspection and examination of their premises and equipment to assess their suitability. Recovery operators do not have to apply to be put upon the rota. Unless they apply they are not liable to make the payments.....I do not consider that these requirements amount to an unlawful imposition."
Whilst it is true, as Mr. de Bono observed, that McCarthy & Stone was not analysed or even mentioned in the judgment of the Court of Appeal in Century Motors, it is unthinkable, having regard to the constitution of the Court and counsel involved in the case, that it did not form the basis of submissions and adjudication on this point.
Mr Fraser advanced the following propositions on the basis of McCarthy & Stone and Century Motors. (1) Section 111 can provide authority by necessary implication in appropriate circumstances, albeit not where it is "incidental to an incidental". (2) Licensing under the 1982 Act is a function of which the imposition of conditions is an integral part - in reality, there is no such thing as a licence which is wholly unconditional. (3) Here, the power to charge arises by necessary implication, partly because, as in Century Motors, there are cost implications, the Council having taken on staff and acquired a computer specifically for the operation of the scheme. (4) It is fairer that the cost be borne by applicant doorkeepers rather than by licensees because an individual doorkeeper may work for several different licensees. (5) The facts of the present case are comparable with those in Century Motors.
On this issue I have come to the conclusion that, whilst the case for the Applicant is arguable, it does not reach the higher threshold referred to in Mass Energy in that it is neither "strong" nor "likely to succeed". In my judgment it is highly probable that Mr. Fraser's submissions would prevail. All the relevant material is before me and I have had the benefit of detailed submissions from both sides. If this were a substantive hearing, I would determine this issue in favour of the Council.
Does the scheme unlawfully delegate the licensing function to the Police?
The evidence of Mr. Culkin is as follows:
"If a person applies to be registered by the Council for the purposes of the scheme he is required to provide relevant details about his background and any relevant convictions. The details provided are checked by the Police who advise the Council whether or not they consider the applicant to be suitable for registration under the scheme. In assessing the applicant's suitability the Police take into account the Home Office guidance and the provisions of the Rehabilitation of Offenders Act. If the applicant is considered suitable he is required to pay £50 which covers the cost of administering the scheme and he is then issued with a registration certificate and photo identity card. Applicants who are considered unsuitable are refused registration and provided with an opportunity to appeal against the decision to the Door Registration Independent Appeals Panel. The Panel when considering the matter hears from the Police and the applicant and then decide whether or not to grant the application."
It goes without saying that it is the Police who have exclusive possession of any record of criminal convictions.
Mr. de Bono submitted that the decision of whether a person is a fit and proper person to be registered as a doorkeeper is thus delegated in the first instance to the Police. Whilst it may happen that the input of the Police proves to be an insuperable obstacle to registration, that does not mean that the decision whether or not to register has been delegated to the Police. It seems to me that the involvement of Police operates as a protection both for applicants and for the public. Moreover, anyone who is dissatisfied with an initial refusal of registration may appeal to the Panel. It is there that the final decision would be made. I shall turn in a moment to Mr. de Bono's criticism of the constitution of the Panel. However, in the context of the delegation issue, I conclude that it is a further reason for my holding that the applicant does not have arguable case on this point.
Is the appeal system procedurally unfair?
The Panel is one of seven members, six of whom are from the Council's Licensing Committee and the seventh is a Merseyside police officer of superintendent rank or above who has not been involved in an earlier stage of any application that is subject to appeal. Appeal hearings are held in private and an appellant may be represented by a solicitor or another person of his choice. Another police officer presents to the Panel the reasons for the recommendation that the applicant be refused registration. Mr. de Bono submitted that this procedure is unfair and in breach of the rules of natural justice because one of the members of the Panel (the senior police officer) is part of the same organisation which made the decision appealed against and which presents the evidence to the Panel. To this extent, he submitted that the Police act as both as prosecutor and judge.
Against this Mr. Fraser submitted that there is clear evidence that the Panel exercises independent judgment. In the twelve months ending April 1999, of thirty two appeals considered, eighteen were allowed and fourteen dismissed. Presentation of material by a police officer is justifiable and sensible because it is the Police and the Police alone who have access to the raw material. The presence of a senior police officer on the panel is in circumstances where he is only one of seven members. It is not arguable that his presence gives a reasonable appearance of bias. Indeed, in one sense his presence suitably broadens the membership because otherwise the appeal process would be entirely limited to the Council.
In the circumstances of this case I do not consider that either the constitution or the procedure of the Appeals Panel has been shown to be arguably unfair. I record that Mr. de Bono conceded that he was short of evidence of unfairness when he indicated that, if permission were to be granted, this is another area in which he would seek to augment the evidence or at least enhance his information by resort to Part Eighteen. He also conceded that there had been no request hitherto for the kind of information to which he was referring which, in the present context, included information as to the role of the Police in the presentation of material to the Panel.
Conclusion on grounds of challenge
It follows from what I have said that, whereas I consider the ground based on the £50 fee to be arguable, I find all the other grounds to be unarguable. Moreover, I consider it appropriate to apply the more demanding Mass Energy test to the one arguable ground and, when I do so it fails that test. Accordingly, I do not consider this to be a case for granting permission for judicial review. In any event, the applicant faces discretionary difficulties to which I shall now turn.
Delay
After an elephantine period of gestation the scheme in its present form was implemented as and when each public entertainment licence came up for renewal after March 1998. Long before that it had received extensive publicity in trade literature and in the local press. I find it hard to accept that the Applicant knew nothing of it before receiving notification via the Beluga Bar in September 1998. The Form 86A seeks to challenge the decision to impose a general condition on public entertainment licences and the decision "on about 15 September 1998 to start registering attendants and door staff under the said condition".
By Order 53 rule 4(1) an application for permission to apply for judicial review:
"shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made."
The present application was lodged on 5 May 1999. Was it made "promptly"? In my judgment, it was not. Almost two months elapsed from when the Applicant received the information from the Beluga Bar until he first consulted solicitors. The initial application for legal aid was not made until 7 December 1998. It was rejected on 9 December 1998 but notice of appeal of that decision was not given until 21 December 1998. Eventually, limited legal aid was granted on 22 March 1999 and full legal aid on 19 April 1999. More that two weeks then elapsed before the present application was lodged. I do not consider that it can possibly be said that it was lodged "promptly". Nor was it lodged within three months. The question therefore arises as to whether "there is good reason for extending the period". In this context I also have regard to section 31(6) of the Supreme Court Act 1981. Where (as here) there has been undue delay in making an application for permission, the court may refuse to grant a permission if it considers that
"the granting of the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of, any person or would be detrimental to good administration."
The evidence in the present case shows that the Council in common with other local authorities, was initially less than certain about the lawfulness of the scheme. However, with the encouragement of the Home Office, the Police and licensees, the Council adopted a scheme, albeit some time after numerous other local authorities in the area and much further afield. This scheme and others like it have been running successfully for a considerable time. No other challenge has reached the courts although one in the south of England was intimated some time ago before fizzling out. No other applicant in Liverpool has challenged the scheme. Staff have been taken on, equipment has been purchased and licensees have co-operated. Registration fees have been paid. I have referred earlier in this judgment to the number of applications in the first year and what became of them. Mr. Culkin's affidavit also gives details of the operation of similar schemes in various other local authority areas in different parts of the country.
Against this background would it be appropriate to extend time in view of the lack of promptness and the undue delay? In my judgment, even if the grounds of challenge had had merit, it is unlikely that a court would seriously contemplate certiorari at this stage. To do so would be at the very least "detrimental to good administration". See Regina v. Dairy Produce Quota Tribunal, ex parte Caswell [1989] 3 All ER 205; Regina v. Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 All ER 164; Regina v. Secretary of State for Employment, ex parte Seymour - Smith [1995] ICR 889. That is no doubt why Mr. de Bono sought leave in the course of the hearing to amend his Form 86A so as to seek in the alternative declaratory relief. Whilst there is always a public interest in ascertaining whether or not a public authority has acted lawfully, in all the circumstances of this case as I have described them I would have been reluctant to extend time to permit the Applicant to seek relief of such a limited kind. In this regard it is also pertinent to note that the Applicant is not a licensee or an applicant for a public entertainment licence, nor for that matter has he applied for registration as a doorkeeper. Moreover, neither he nor his solicitors wrote any letter before action in this matter until 31 March 1999. I do not regard his application as deserving of discretion.