Constitution of licensing sub-committees

Roy Light highlights the dangers for local authorities that fail properly to constitute their licensing sub-committees.

The Licensing Act 2003 ('the Act') provides that premises which carry on licensable activities must hold a premises licence to authorise the carrying on of the licensable activities. The Act and its subordinate legislation provide a statutory scheme for the licensing regime. Licensing authorities are created and each is required to establish a licensing committee to carry out the authority's responsibilities under the Act. A licensing committee may delegate some of its responsibilities to a licensing sub-committee.

In a recent appeal the decision of the licensing sub-committee in a review hearing was challenged successfully on the basis that the sub-committee was not lawfully constituted.[1] This was the third review hearing in respect of the premises. The decision of the first hearing in 2012 was quashed on appeal on the grounds that the review had not been advertised on the authority’s website as required by the regulations made under the Act; the second hearing had to be abandoned part way through when one of the sub-committee members made it clear, or at least gave the clear impression, that she had already made up her mind on the merits of the review before having heard all of the evidence.

The third review went to a hearing in late 2013. Subsequent to the hearing the premises licence holder became aware of the fact that a member of (indeed the person chairing) the sub-committee was not a member of the authority’s licensing committee and, further, was a member of the authority’s executive. An appeal was lodged on the grounds that the committee was unlawfully constituted.

Grounds of appeal

The Appellant contended that a member of what purported to be a licensing sub-committee was not a member of the Respondent's licensing committee as required under the Licensing Act 2003, ss.6(1), 7(1) and 9(1) and by the Respondent's own constitution; and was not therefore qualified to sit on a sub-committee of the licensing committee. Further, the same member was a member of the Respondent's executive and so ineligible for membership of the licensing committee. The sub-committee as constituted had no jurisdiction to exercise the statutory powers under the Licensing Act 2003 and the proceedings should be declared a nullity and the decision of the sub-committee quashed.

Membership of licensing sub-committees

Membership of licensing committee

By s.6(1) of the Act a licensing authority must establish a licensing committee consisting of at least 10 but not more than 15 members of the authority. Section 9(1) of the Act states that: A licensing committee may establish one or more sub-committees consisting of three members of the committee. That a member of a licensing sub-committee must be a member of the licensing committee may be recognised by authorities in their constitution. For example, North Somerset’s constitution stated that: The membership of a Licensing Sub Committee shall not exceed 3 Members of the Council who will also be Members of the Licensing Committee.

Further, by s.7(1) of the Act: All matters relating to the discharge by a licensing authority of its licensing functions are ... referred to its licensing committee and, accordingly, that committee must discharge those functions on behalf of the authority. The position appears simple: the licensing authority must establish a licensing committee (s.6(1)); the licensing committee must discharge the functions of the licensing authority (s.7(1)); and the licensing committee may establish licensing sub-committees consisting of members of the licensing committee (s. 9(1)).

The argument was made by the authority that its standing orders allowed a substitute to be put forward if a member of the licensing sub-committee becomes unavailable and that the substitute need not be a member of the licensing committee. This was not accepted by the Court and cannot be what was intended by the Act as:

(1) if licensing authorities were able to substitute non-members as and when they wished it would remove the requirement to establish a licensing committee 'of at least 10 but not more than 15 members of the authority';

(2) the nature of the work required of licensing committee members means that they require to be and are trained for the role;

(3) by s.6(1) of the Act the licensing committee must have 'not more than 15 members' and, if there are already 15 members, to add another would exceed the statutory maximum and could not be done; and

(4) the authority’s standing orders cannot override the legislative provisions.

Membership of executive

The Local Authorities (Functions and Responsibilities) (England) (Amendment) Regulations 2000 provide that certain local authority functions are not to be the responsibility of an executive of the authority (regulation 2(2)). The Local Authorities (Functions and Responsibilities) (England) (Amendment) Regulations 2013 which came into force on 1 October 2013 included in these functions any function of a licensing authority relating to the Licensing Act 2003.

Thus it may be argued that those who sit on a licensing sub-committee should not be a member of the executive. Against this, the Respondent in MuMu argued that while licensing was not to be the responsibility of the executive this did not bar individual members of the executive from being appointed to the licensing committee. But would such an interpretation allow the prohibition on the executive exercising licensing functions to be circumvented simply by appointing members of the executive to the licensing committee? Surely not what Parliament intended.

R (Bridgerow Limited)

The decision in R (Bridgerow Limited) v. Cheshire West and Chester Borough Council and another [2014][2] was handed down after the MuMu appeal was lodged and was of obvious relevance to the appeal. The decision in Bridgerow concerned the refusal by an authority of the renewal of an SEV for a lap dancing venue. There were various grounds of challenge to the decision including, significantly, that the authority had contravened its constitution because the decision had been taken by a wrongly constituted panel of councillors. The authority's constitution specified that such decisions are to be taken by a panel comprising three members drawn from the full Licensing Committee on a politically proportionate basis. Per Stuart-Smith J:

"To my mind it is clear beyond argument that the Constitution said and meant that Bridgerow's renewal application should have been decided by a panel of three members drawn from the full Committee on a politically proportionate basis ... Equally clearly, that is not what happened" (para.33).

"what matters is that the decision should have been taken by three and it cannot be said that a panel of three would have reached the same result as the twelve who in fact made the decision (para.36) ... the decision of the 17 September 2013 must be set aside because it was taken by a group of people who had no power to take it" (para.37).

The other grounds of appeal were dealt with shortly with Stuart-Smith J concluding that the decision must be quashed because of the serious procedural irregularity which led to it being taken by the wrong persons (para.42).

It may be argued that Bridgerow concerned a licence application under the Local Government (Miscellaneous Provisions) Acts of 1976 and 1982 which govern decision making for licences such as taxis and SEVs which leave the authorities to determine how they delegate authority to carry out their functions. However, these Acts are far less prescriptive than the Licensing Act 2003. The Licensing Act 2003 is prescriptive in terms of the way in which authorities carry out their licensing functions. The requirements are set by statute and the authority has no choice but to follow the statutory procedure laid down in the Act.

Tim Briton, LLG's (Lawyers in Local Government) Deputy Lead Officer for Litigation and Licensing writing in Local Government Lawyer[3] had this to say of the Bridgerow decision: "Stuart-Smith J’s decision is a timely reminder to councils that where either legislation or a council’s own constitution sets out that a decision should be made by a particular person or body, that must be followed or any decision made without proper authority will not have effect."

Order of the court

The Court in MuMu found that the licensing sub-committee which purported to hear the review was not lawfully constituted on the basis that one of its members was not a member of the Respondent’s licensing committee. The DDJ did not go on to consider the challenge to the constitution of the sub-committee on the grounds that a member was also a member of the executive.

The Appellant argued that the sub-committee decision should be quashed. The Respondent argued that if the decision of the licensing authority was wrong then the Court should go on to hear the appeal. However, the Court accepted the Appellant’s argument that it is not a question of whether the sub-committee erred in law when making its decision rather, as a sub-committee must be made up of members of the licensing committee, the sub-committee was not a lawfully constituted licensing sub-committee and lacked jurisdiction to hear the review. Once the Court found that the review hearing was unlawful and quashed the decision it became a nullity and there was nothing further for the court to adjudicate on in relation to the sub-committee hearing. Or to put it another way, the Court did not find that the Respondent’s Licensing Sub-Committee came to the wrong decision but rather that there was no decision.

This is underlined by the wording of the Act and the Licensing Act 2003 (Hearings) Regulations 2005. Section 52(2) of the Act provides that the authority must hold a hearing and regulation 2(1) states that ‘authority’ means, in relation to a hearing, the relevant licensing authority … which expression includes the licensing committee or licensing sub-committee discharging the function of holding the hearing.

It is also the case that if a Court in these circumstances proceeded to hear the substantive appeal there would be the denial of the right of the Appellant and those making representations to a hearing before a lawfully constituted tribunal. As Stuart-Smith J put it in Bridgerow:

"Parliament's intention was to give primacy to the evaluative judgment of local authorities who have the advantage of local knowledge, the responsibility vested in them by election and the accountability to their constituents imposed by the local democratic process".[4]

Summary

MuMu was decided by a deputy district judge (crime) and as such is not of binding authority on other tribunals. However, taken with the decision in Bridgerow, it demonstrates that if an authority fails properly to constitute a licensing sub-committee it risks having any decision made by that body quashed. The court in MuMu did not consider the argument that members of the executive may not sit on the licensing committee. Even so, authorities may wish to give the point some consideration and to take a view on the matter.

Roy Light is a barrister at St John’s Chambers, Bristol. Instructed by Chris Carter of Hall, Ward & Fox, he represented the Appellant.