The Judicial Committee of the Privy Council Decisions

Grape Bay Limited v. Attorney General Bermuda [1999] UKPC 43 (28th October, 1999)

Grape Bay Limited Appellant

v.

The Attorney General Respondent

FROM

THE COURT OF APPEAL OF BERMUDA

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 21st July 1999, Delivered the

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Present at the hearing:-

Lord Hoffmann

[Delivered by Lord Hoffmann]

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1. On 21st July 1999 their Lordships agreed humbly to advise Her Majesty that the appeal should be dismissed and that the appellant must pay the Attorney-General’s costs before their Lordships’ Board and that they would deliver their reasons later. This they now do.

2. The McDonald’s Corporation of Illinois has built up a successful world-wide business franchising the operation of fast food restaurants under its name and trade marks and in accordance with its standards. It has one of the best known brands in the world. But a consequence of this well-defined image is that some people feel that it does not fit into their own image of what their neighbourhood should be like. The result is that the prospect of the opening of a new McDonald’s restaurant sometimes arouses opposition and high passion among the local residents. This is what happened in Bermuda when the appellant, Grape Bay Limited ("Grape Bay") proposed to open several restaurants on the Islands under a franchise agreement with McDonald’s.

3. The history of the matter begins on 26th October 1992, when McDonald’s wrote a letter to Mr. Leon Simmons, who was acting on behalf of a Bermudian company called Warner Holdings Ltd. ("Warner"). Their Lordships will call it "the letter of intent". It started by saying that the purpose of the letter was "to confirm our intent to enter into a restaurant development agreement with your investor group". It then said that "Some of the basic terms and conditions of our offer are as follows" and set out their requirements. They included a provision that McDonald’s could hold an equity interest in Warner and that Warner would pay a royalty based upon gross annual sales. The licence to Warner was to be subject to McDonald’s usual terms and conditions. McDonald’s were to have the right to approve the appointment of a Managing Consultant who would oversee the operations of the Bermudian restaurants, which McDonald’s would also be entitled to review, oversee and approve. The selection of sites and the construction of each restaurant was subject to review and approval by McDonald’s. On the other hand, as long as the Bermudian population remained less than 100,000, Warner would have the sole right to operate McDonald’s restaurants on the Islands. The letter said that the final terms and conditions of the licence were subject to the approval of McDonald’s International Licensing Group and ended as follows:-

"This offer is further conditional upon our finalizing a written development agreement. If we are unable, after a good faith effort, to finalize a written development agreement within one hundred eighty (180) days after your acceptance of this letter of intent, either party may terminate its obligations under this letter of intent by serving written notice by certified mail return receipt requested upon the other party."

4. In fact it appears that more than three years elapsed before any steps were taken towards negotiating a development agreement. But neither party exercised its right to terminate. At the end of December 1995 Grape Bay was formed, with Sir John Swan as its principal shareholder. The principal object stated in the memorandum of association was:-

"To obtain all necessary permits or licences from McDonald’s Corporation for the purpose of enabling the Company to carry on the business of McDonald’s Restaurants within the Islands of Bermuda upon such terms and conditions as may be acceptable to it."

5. In accordance with section 6(1) of the Companies Act 1981 the promoters required the consent of the Minister of Finance for the registration of Grape Bay as a local company, authorised to carry on business within the Islands. For this purpose the Minister must be satisfied that Bermudians control at least 60% of the shares. The Minister gave consent on 19th February 1996 and the company was registered on 21st February 1996.

6. The giving of consent created a storm of disapproval in Bermuda. On 6th March 1996 the House of Assembly passed a motion deploring the consent and the approval of fast food franchises generally. Grape Bay was already involved in fairly detailed negotiations with McDonald’s, which had written to Mr. Simmons on 4th March 1996 enclosing franchise application forms for Sir John Swan and the other promoters to complete. McDonald’s said that $3,000,000 in capital would be required to launch the project and that a suitable operating partner should be identified as soon as possible. They said their lawyers would research the question of whether there were any barriers to their operations in Bermuda. Representatives of McDonald’s made several visits to the Islands. On 8th April 1996 Grape Bay applied to the Government’s Department of Airport Operations for a concession to operate a restaurant at Bermuda International Airport. The application was to be submitted to an Evaluation Committee which advised the Minister of Transport.

7. On 10th May 1996 the Minister of Finance made a statement in the House of Assembly. He said that he was setting up a committee under the chairmanship of the Minister of Tourism and Marine Services to review government policy on franchises. Members were chosen from a broad spectrum of interests. The Committee sat for three months and consulted widely. Meanwhile on 30th April 1996 a private member tabled a Bill in the House of Assembly called the Prohibited Restaurant Bill 1996. It contained only three clauses. The first was the short title. The second contained definitions. It defined a "prohibited restaurant" as:-

8. "a restaurant which is operated in any manner, whether through distinctive name, design, uniforms, packaging, decoration or otherwise, which reasonably suggests a relationship with any restaurant or group of restaurants operating outside Bermuda":

and a "restaurant" as:-

"any tavern, public house or place trading for profit by provision to the public of food or refreshment with or without entertainment."

9. The third clause was short and to the point. It said that no person should after the commencement of the Act operate a prohibited restaurant in Bermuda. There was an exception for restaurants in operation on the date of the Minister’s statement on 10th May 1996, which were entitled to continue to operate in the same manner as before. Finally, contravention of the Act was declared to be punishable by a fine of $5,000 or imprisonment for 6 months or both.

10. The Bill was debated on 14th and 15th June 1996 and passed. On 26th June, however, it was defeated in the Senate. It remained however open to the proposer of the Bill to reintroduce it in the new session of the House of Assembly due to commence in November 1996. Meanwhile, the effect of the Bill and the review committee was to create sufficient uncertainty to put the McDonald’s franchise project on hold. On 26th June 1996 the Project Manager at the airport wrote to Grape Bay saying that the Evaluation Committee had recommended the company to the Minister of Transport as "the leading proponent for the category, Food & Beverage" but that in view of the Bill, no further action would be taken. Any lease of premises at the airport would also be subject to approval by Parliament. On 30th July 1996 McDonald’s decided to wait until the Legislature reconvened before taking any further action. The only exception was that they agreed that Mr. Goard-Savery, who had been put forward by Grape Bay as the managing consultant or operating partner, should go to London for training in a McDonald’s restaurant. He started there at the beginning of August.

11. The report of the review committee was laid before the House of Assembly on 22nd November 1996. It recommended against the complete prohibition of franchise restaurants. On the other hand, it advised that their continuation should be contingent on the formation of a Franchise Commission with responsibility for supervising the conditions under which they would be allowed to operate. There should be "strict controls with strong regard to aesthetics, image and appearance". For example, all food franchises should trade under a local name and all exterior signage should give prominence to the local name. Reference to the foreign franchise affiliation should be in letters not exceeding three inches in height. The restaurants should "project a Bermudian image and appearance" on the outside. Only inside could the foreign name and logo be used more liberally.

12. The recommendations of the review committee evidently did not satisfy the proposer of the Bill. It was reintroduced into the House in December 1996 and given a second reading. It appeared likely that the Bill would pass its remaining stages. If that happened, then, pursuant to section 38(2) of the Constitution, the Bill could, if rejected a second time by the Senate, nevertheless be presented to the Governor for signature. On 17th December 1996 the General Manager of the Department of Airport Operations wrote to Grape Bay saying that it looked as if the operation of a McDonald’s restaurant would almost certainly become unlawful. He asked Grape Bay to say what in the circumstances were its intentions about operating a concession at the airport. On 17th January 1997 Grape Bay’s attorneys wrote back saying that the Bill was not yet law and their intentions were still the same. In any case, they had advised their clients that the Act, if passed, would be unconstitutional.

13. On 20th June 1997 the Bill passed the House of Assembly but on 2nd July 1997 it was again defeated in the Senate. This meant that the Bill could be presented to the Governor for signature without the approval of the Senate. At this stage Grape Bay, presumably with a view to improving its position in the forthcoming litigation of which its attorneys had given notice in January, decided to get its papers in order. On 17th July 1997 Warner executed an assignment to Grape Bay of the benefit of the letter of intent. On 25th July 1997 Grape Bay entered into a formal employment agreement with Mr. Goad-Savery, conditional upon the opening of a McDonald’s Restaurant. On 27th July 1997 Sir John Swan executed a document described as a guarantee, which confirmed that he had undertaken to make up to $3,000,000 in capital available to the company. On the same date, he granted Grape Bay an option to lease premises in Hamilton for the purposes of a restaurant. A week later, on 4th August 1997, the Governor signed the Bill and it became the Prohibited Restaurant Act 1997. Its terms were the same as those of the Bill which their Lordships have already recited.

14. Grape Bay issued an originating summons seeking a declaration that the Act infringed its rights under the Constitution. The relevant provisions read as follows:-

"Fundamental rights and freedoms of the individual

1. Whereas every person in Bermuda is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely:

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and association; and

(c) protection for the privacy of his home and other property and from deprivation of property without compensation, the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."

"Protection from deprivation of property

13(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say ..."

15. There follow various conditions such as a requirement that the acquisition should be in the public interest, that there should be provision for prompt payment of adequate compensation and that there should be a right of appeal.

16. Finally there is the provision for the enforcement of fundamental rights.

"15(1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him ... that person may apply to the Supreme Court for redress."

17. Grape Bay submits that it has been deprived of property without compensation within the meaning of section 1(c). It accepts that it cannot bring itself within section 13(1). None of its property has been compulsorily taken into possession or acquired. But it claims that the rights conferred by the reference to deprivation of property in section 1(c) are not exhaustively stated in section 13. Section 1 is a free-standing provision which creates rights at a higher level of generality, though subject to equally general qualifications to protect the rights of others and the public interest. These more general rights are nevertheless just as enforceable as the specific rights in section 13 and the other sections which, as section 1 says, have been enacted "for the purpose of affording protection" to the rights and freedoms that section 1 enumerates. The fact that section 1 was also intended to be enforceable is shown by the language of section 15(1), which allows anyone to complain of contravention of "any of the foregoing provisions" and not merely sections 2 to 14. The judge (Meerabux J.) accepted this argument but the Court of Appeal rejected it.

18. The Constitutions of certain of the U.K. Overseas Territories such as Bermuda and many of the former British possessions, now independent States, have a family resemblance. Typically they contain a chapter on the protection of the fundamental rights and freedoms of the individual which is introduced by a provision such as section 1 of the Bermuda Constitution, stating those rights and freedoms and their limitations in general terms, followed by a series of sections dealing with particular rights and more detailed exceptions and qualifications. Finally, there is an enforcement provision which gives any person who alleges a contravention of some or all of the provisions of the chapter the right to claim constitutional relief from the court.

19. On the other hand, the constitutions differ in detail and also on whether the general statement of fundamental rights and freedoms at the beginning of the chapter is separately enforceable. For example, in Blomquist v. Attorney-General of the Commonwealth of Dominica [1987] A.C. 489 the Board was considering the constitution of Dominica, which contains a general statement in section 1, followed by particular rights and freedoms in sections 2 to 15 and section 16(1) which provides that:-

"If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him ... then, without prejudice to any other action with respect to the same matter which is lawfully available, that person ... may apply to the High Court for redress."

20. The constitution therefore makes it clear that section 1 is not to be separately enforceable and the Privy Council so held.

21. In contrast, the constitution of Mauritius has a general statement in section 3, which reads as follows:-

"It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms namely -

(a) the right of the individual to life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression, of assembly and association and freedom to establish schools; and

(c) the right of the individual to protection for the privacy of his home and other property and from deprivation of property without compensation, and the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."

22. Unlike the Dominican enforcement section, section 17(1) of the Mauritius constitution provides that "Where any person alleges that any of sections 3 to 16 has been ... contravened in relation to him", he may apply for constitutional relief. Thus the constitution makes it clear that section 3 is intended to be separately enforceable. In Societe United Docks v. Government of Mauritius [1985] AC 585 Lord Templeman, giving the judgment of the Board, said at page 599:-

"The wording of section 3 is only consistent with an enacting section; it is not a mere preamble or introduction. Section 3 recognises that there has existed, and declares that there shall continue to exist, the right of the individual to protection from deprivation of property without compensation, subject to respect for others and respect for the public interest. Section 8 sets forth the circumstances in which the right to deprivation of property can be set aside but it is not to curtail the ambit of section 3. Prior to the Constitution, the government could not destroy the property of an individual without payment of compensation. The right which is by section 3 of the Constitution recognised and declared to exist is the right to protection against deprivation of property without compensation. A Constitution concerned to protect the fundamental rights and freedoms of the individual should not be narrowly construed in a manner which produces anomalies and inexplicable inconsistencies."

23. Mr. Diel, to whom their Lordships are indebted for a comprehensive written statement of Grape Bay’s case and a succinct oral argument, invites the Board to construe section 1 of the Bermuda constitution in the same way. But there is an important difference in the language of the Bermuda and Mauritius constitutions. Section 1 of the Bermuda constitution begins with the words "Whereas every person in Bermuda is entitled to the fundamental rights and freedoms of the individual, that is to say ...". The introductory word "whereas" is more indicative of a preamble to later operative words than a separate enactment. In Olivier v. Buttigieg [1967] 1 AC 115 the Privy Council considered the constitution of Malta, in which the general statement of rights in section 5 also began with the words "Whereas every person in Malta is entitled to the fundamental rights and freedoms of the individual, that is to say ...". In giving the judgment of the Board, Lord Morris of Borth-y-Gest said (at p. 128):-

"It is to be noted that the section begins with the word `Whereas’. Though the section must be given such declaratory force as it independently possesses, it would appear in the main to be of the nature of a preamble. It is an introduction to and in a sense a prefatory or explanatory note in regard to the sections which are to follow."

24. It was these remarks which the Court of Appeal followed in the present case in holding that section 1, as a preamble, was an aid to the construction of section 13 but not separately enforceable. It had pointed out that the phrase "the subsequent provisions of this Chapter", which appears in section 1 of the Constitution of Bermuda did not appear in section 3 of the Constitution of Mauritius. On the other hand, Mr. Diel has drawn their Lordships’ attention to other Commonwealth cases in which a different view has been taken of provisions beginning with the word "Whereas". For example, in Dow v. Attorney-General [1992] L.R.C. (Const). 623 the Court of Appeal of Botswana held by a majority that the general statement in section 3 of the Constitution, though also commencing with the word "Whereas", was not a preamble but a separate enacting section. There was however a persuasive dissenting judgment by Schreiner J.A, with whom Puckrin J.A. agreed. Even if the majority were right in treating section 3 as separately enforceable, the actual decision would appear to be contrary to the opinion of this Board in Poongavanam v. The Queen (unreported), 6th April 1992, Appeal No. 27 of 1989, to which reference was made in Matadeen v. Pointu [1999] 1 AC 98, 118.

 

25. It is however unnecessary for their Lordships to decide in the present case whether the general statement in section 1 of the Constitution is to be a preamble or to have independent force, because their Lordships have no doubt that the effect of the Prohibited Restaurant Act 1997 on Grape Bay was in any event not a "deprivation of property" within the meaning of that section.

 

26. What property did Grape Bay have at the time when the Act was passed? It had the liberty (subject to the planning laws and the rights of McDonald’s to restrain any passing off or trade-mark infringement) to acquire premises and open a McDonald’s restaurant. In essence it is this liberty which the Act has removed. But such a liberty, shared with the rest of the population of Bermuda, is not private property. To avoid this difficulty, Grape Bay complains that it has been deprived of the "choses in action" which were hastily assembled as the Bill was about to become law. They are the benefit of the letter of intent, assigned to Grape Bay on 17th July 1997, the agreement to employ Mr. Goad-Savery, executed on 25th July 1997, the so-called guarantee and the grant of an option to rent premises, both granted by Sir John Swan on 27th July 1997. Grape Bay says that these choses in action are "property" and that the Act has made them worthless because the contingency on which they would have become operative and valuable, namely the opening of a McDonald’s Restaurant, cannot now occur.

 

27. It is well settled that restrictions on the use of property imposed in the public interest by general regulatory laws do not constitute a deprivation of that property for which compensation should be paid. The best example is planning control (Westminster Bank Ltd. v. Beverley Borough Council [1971] A.C. 508) or in American terminology, zoning laws (Village of Euclid v. Ambler Realty Company (1926) 272 U.S. 365). The give and take of civil society frequently requires that the exercise of private rights should be restricted in the general public interest. The principles which underlie the right of the individual not to be deprived of his property without compensation are, first, that some public interest is necessary to justify the taking of private property for the benefit of the state and, secondly, that when the public interest does so require, the loss should not fall upon the individual whose property has been taken but should be borne by the public as a whole. But these principles do not require the payment of compensation to anyone whose private rights are restricted by legislation of general application which is enacted for the public benefit. This is so even if, as will inevitably be the case, the legislation in general terms affects some people more than others. For example, rent control legislation restricts only the rights of those who happen to be landlords but nevertheless falls within the general principle that compensation will not be payable. Likewise in Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104, the New York City’s Landmarks Preservation Law restricted only the rights of those people whose buildings happened to have been designated historic landmarks. Nevertheless the Supreme Court of the United States held that it was a general law passed in the public interest which did not violate the Fifth Amendment prohibition on taking private property without compensation.

 

28. Whether a law or exercise of an administrative power does amount to a deprivation of property depends of course on the substance of the matter rather than upon the form in which the law is drafted. In the leading Canadian case of Manitoba Fisheries Ltd. v. The Queen (1978) 88 D.L.R. (3d) 462, the Canadian Freshwater Fish Marketing Act, R.S.C. 1970, C.F-13 conferred upon a statutory corporation the monopoly of exporting fish from Manitoba. The appellants had previously been exporting fish and the effect of the Act was to destroy their business. The Supreme Court of Canada held that they had been deprived of their property, namely, the goodwill of the business, even though that goodwill had not been directly transferred to the corporation. The substantial effect was to enable the corporation to acquire their previous customers. Societe United Docks v. Government of Mauritius [1985] AC 585, in which the plaintiffs alleged that their businesses had been destroyed by a monopoly of handling sugar for export conferred upon a statutory corporation, was treated as being in principle a similar case, but the plaintiffs failed on the facts because they were unable to show a causal connection between the establishment of the monopoly and the loss of their businesses.

 

29. Their Lordships consider that this case is clearly within the principle of general regulation in the public interest. The prohibition on what for convenience their Lordships will call franchise restaurants applied to everyone in Bermuda. It was highly specific in effect, not prohibiting restaurants or any other form of activity other than restaurants operated in a manner which fall within the statutory definition. It affected Grape Bay more than others because they were actually engaged in negotiations with a view to setting up a McDonald’s restaurant. But there was no existing business of which they were deprived, as in the Manitoba Fisheries case. Still less was there, as in that case, what amounted in substance to an acquisition of that business by a public authority. And in the present case, unlike the cases on planning control or landmark preservation orders, Grape Bay did not even own land affected by the restriction. It merely had an option to take a lease.

 

30. Mr. Diel submits that one should concentrate upon the July 1997 choses in action. The value of those, he says, was completely destroyed by the Act, just as the value of the appellants’ businesses was destroyed in the Manitoba Fisheries case. But, leaving aside the point that the benefit of these choses in action was not in even the broadest sense acquired by a public authority, their Lordships consider that it would be highly artificial to regard them as separate items of property. There was some debate about the extent to which the letter of intent was a legally enforceable agreement, but even assuming this to be so, all the agreements were of value only in connection with Grape Bay’s liberty, enjoyed in common with others, to open a McDonald’s Restaurant. A similar point arose in Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104, in which the designation of Grand Central Terminal as a "landmark" prevented the owners from adding another 50 stories of office building on the top. The owners said that it was not a mere matter of restriction on their use of their land. They had been entirely deprived of the use of the airspace above the station. Accordingly, this had been "taken" within the meaning of the Fifth Amendment. The Supreme Court said that it was artificial to regard the airspace as a separate item of property. Brennan J., giving the opinion of the court, said (at pp. 130-131):-

"‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with the rights in the parcel as a whole ..."

 

31. Thus the owner of land whose plans to erect a building have been frustrated by new planning restrictions cannot argue that his contracts with an architect and quantity surveyor for services in erecting the building constitute separate items of property of which he has been altogether deprived without compensation. Nor can he be better off when, as in this case, he has not yet even acquired the land.

 

32. In the Supreme Court, Meerabux J. said that he was unable to accept that the form of regulation contained in the Act was in the public interest. He said that he had heard no evidence about what the Act was designed to achieve and could not for himself see any benefits which would accrue to the community. In arriving at this conclusion, he was influenced by the fact that the Act went much further than the recommendations of the Review Committee and prohibited franchise restaurants altogether. Mr. Diel said that, as a judge of the local court, Meerabux J. was better placed to know what was in the interests of Bermuda than their Lordships in London. They should not therefore interfere with his assessment unless it was plainly wrong.

 

33. Their Lordships would accept that Bermudians are in the best position to know what the public interest of Bermuda requires. But the Constitution lays down a separation of powers between the executive, legislature and judiciary. On a matter such as the desirability or otherwise of franchise restaurants, which is a pure question of policy, raising no issue of human rights or fundamental principle, the decision-making power has been entrusted to those Bermudians who constitute the legislative branch of government and not to the judges. Their Lordships consider that it is plain from the terms of the Act that the legislature considered it contrary to the public interest in Bermuda to allow the further opening of franchise restaurants. This may or may not have been a wise decision. The prohibition may have been framed in wider terms than necessary. The unique identity of Bermuda, which as the background shows, it was the object of the legislation to preserve, may be a somewhat intangible concept, not easy to reduce to a few propositions. But feelings about what gives a community its identity are powerful and important. The issues which they raise are pre-eminently matters for democratic decision by the elected branch of government. The members of the legislature are not required to explain themselves to the judiciary or persuade them that their view of the public interest is the correct one. Their Lordships note that in the Court of Appeal Kempster J.A. commented that "the legislature rather than the courts is in the best position to assess the requirements of the public interest and should be allowed a wide margin of appreciation". Their Lordships agree.

 

34. It remains only to notice a preliminary point made by Mr. Diel. He said that as a matter of construction, a McDonald’s Restaurant was not a restaurant, and therefore not a prohibited restaurant, within the meaning of the Act. He said that "restaurant" was defined as a "tavern, public house or place trading for profit by provision to the public of food or refreshment with or without entertainment". The two opening categories, tavern and public house, were both places customarily serving alcoholic liquor. Therefore the last category, which would most naturally appear to mean restaurants serving food with or without alcoholic liquor, should be construed eiusdem generis and confined to places which served alcoholic liquor. It follows that franchise restaurants such as McDonald’s, which serve no alcoholic liquor, fall outside the ban. Their Lordships consider that this submission well merits the term ingenious but they reject it. Insofar as the references to tavern and public house create any kind of genus, it is not by reference to the sale of alcoholic liquor. At most they may suggest that what the legislature had in mind was a place in which food or drink was supplied for immediate consumption, whether on or off the premises. The words "food or refreshment" are quite inconsistent with a requirement that alcoholic liquor should be served. Mr. Diel said that literally construed the Act would otherwise apply to hotels and supermarkets. But without expressing any concluded view, their Lordships are confident that the courts will avoid giving a fanciful construction to what appears to be a fairly clearly stated legislative intent. In any case, this is hardly a point to be raised on a constitutional motion. If Mr. Diel is right, Grape Bay is free to open a McDonald’s Restaurant and its constitutional rights are untouched. The right time at which to argue the point is if and when Grape Bay is prosecuted for infringing the Act.