Late review

A licensee sought to challenge a licensing committee decision by attacking the council's delegation scheme. Gary Grant, who represented the London Borough of Islington in the Magistrates Court, High Court and Court of Appeal, explains why the Court of Appeal rejected the challenge.

The long-running saga involving Orleans Nightclub in the London Borough of Islington saw the Court of Appeal flex its muscles on 20 April 2011, when it concisely dismissed the nightclub operator’s claim for judicial review and found in favour of the London Borough of Islington.

The story of Queen (Raphael) v Highbury Corner Magistrates Court and the London Borough of Islington [2011] EWCA Civ 462 began in 2008. Orleans was a perfectly ordinary nightclub near Finsbury Park station. It enjoyed a 24-hour Premises Licence granted under the Licensing Act 2003. But over a long period its late opening hours attracted a crowd who seemed to prefer communicating by using their fists rather than their tongues. As a result Orleans experienced an inordinate amount of crime and disorder which greatly troubled the experienced police licensing officers within Islington.

When informal guidance failed to stem the trouble, the police licensing officer applied – in his own name – for a Review of the Premises Licence under section 51 of the Licensing Act 2003. A local resident was also troubled by the operation of Orleans and lodged a letter supporting the police’s review application. The licensing officer accepted the resident’s complaint as a relevant representation, since it was made by a person living within the vicinity of Orleans and was neither frivolous nor vexatious in the opinion of the licensing officer.

The review hearing before the licensing sub-committee was uneventful. The club’s hours were cut back from 24 hours a day to a still late terminal hour of 03:30 hrs. The aggrieved owner of the club, Mr Raphael, appealed to the magistrates’ court. In early 2009 his appeal was dismissed on the merits and the decision of Islington’s licensing sub-committee upheld. So far, so good for Islington. But as a result of the reduced hours Mr Raphael saw his club’s turnover fall. What then for Mr Raphael?

The decision to reduce the hours was quintessentially a factual one and involved an exercise of the judgment. The High Court will not readily interfere with such a decision. So if the factual decision was beyond reproach, only a challenge based on the law was left. The operator’s lawyers cast their gaze to Islington’s “Scheme of Delegation” under the Licensing Act 2003.

As in all organisations one person or indeed body is unlikely to be able do everything, or is even expected to. It just would not be a particularly efficient use of resources if, for example, the chief executive of a council was responsible for personally assessing every complaint a neighbour may make against a pub. Much better that the chief executive provides a leadership and overview role and concentrates only on the important and major decisions. Much better too that the task of considering the neighbour’s complaint is delegated down to the appropriate licensing officer who knows exactly what he is doing and has the time and experience to deal with it properly. The Licensing Act 2003 envisages and expressly provides for just such a scheme of delegation to enable the whole licensing regime to operate properly, efficiently and effectively.

In the belief it was acting in accordance with the Licensing Act’s powers of delegation, a meeting of Islington’s full Licensing Committee took place on 26 January 2005. The proposed scheme of delegation was approved. In line with nearly all local authorities, Islington´s licensing sub-committees would, among other things, consider Review applications. The duty to consider whether representations were “relevant” under the Licensing Act and not frivolous or vexatious was expressly delegated by the full Licensing Committee to the Assistant Director Environment Conservation (Public Protection). The Assistant Director in turn sub-delegated the task to her licensing officers, a sub-delegation that was also later challenged since it had not been made by the licensing committee itself.

The dates here are crucial. Because although the Council’s decision to adopt the scheme of delegation took place at a meeting held on 26 January 2005, the specific power investing licensing functions in the full licensing committee (section 7, Licensing Act 2003) and the additional power of a licensing committee to in turn delegate those functions to sub-committees (section 10) only came into force some 12 days later on 7 February 2005. On the face of it, Mr Raphael argued, Islington’s Licensing Committee had purported to establish sub-committees and delegate functions to those sub-committees and licensing officers before they had any legal authority to do so under the Licensing Act 2003.

In other words, it was submitted, since Islington had “jumped the gun” their purported delegation of licensing functions to sub-committees and licensing officers was of no effect. Any subsequent decisions made by Islington’s licensing sub-committees, including those involving Orleans nightclub in 2008, were therefore a nullity. Islington, with respect, did not agree.

In launching judicial review proceedings against Islington (and the magistrates’ court that heard the appeal), the nightclub sought an order overturning the decision to curtail the club’s hours and also seeking damages for lost revenues. At the oral application for leave the Appellant had also taken the point that since the Review application was signed merely in the name of “Pc Mark Usher” rather than in the name of the Commissioner of Metropolitan Police himself (or on his behalf), Pc Usher had no authority to apply for a Review in his own name (the power to do so being invested in the “Chief Officer of Police” by virtue of section 13(4)(a) LA03). On this point the High Court accepted Islington’s submissions that Parliament could not have intended the Commissioner himself to personally sign every Review application and the Licensing Act must be read as impliedly permitting this task to be delegated to more junior officers (as in fact it had been). Leave on this ground was summarily refused.

In the High Court

The full judicial review hearing was heard before HH Judge Mackay QC, sitting as a Deputy High Court Judge – Queen (Raphael) v Highbury Corner Magistrates Court and the London Borough of Islington [2010] EHWC 1502 (Admin). In his judgment the High Court dismissed Mr Raphael’s claim and accepted Islington’s submissions that:

1. Although sections 7 and 10 of the Licensing Act 2003 had not come into force at the time the licensing committee approved the scheme of delegation, and despite the fact that the Licensing Committee appeared to incorrectly believe they were exercising powers under that Act, there existed a separate general power under section 101 of the Local Government Act 1972 for functions and powers to be delegated within a local authority. (Note – a subsequent legislative change excluded the application of section 101 to the Licensing Act 2003 but this had no impact on the present case – see Schedule 6, para 58 of Licensing Act 2003 inserting a new sub-section (15) to section 101 Local Government Act 1972).
2. Since the considerations for delegating powers under section 101 of the 1972 Act are in effect no different to those contained within section 10 of the Licensing Act 2003, it made no difference that the Licensing Committee may not have considered the correct statutory source of their power. As of 26 January 2005 (the date of the delegation decision) Islington did in fact have the power to delegate functions albeit under a different Act. Their decision to delegate licensing functions was validated by section 101 whether the Licensing Committee knew it or not.
3. In any event the delegation scheme was repeated and adopted by further decisions of the Licensing Committee in the years after section 10 came into force.
4. In addition, the High Court also accepted Islington’s “fall back” submission that section 13 of the Interpretation Act 1978 would have permitted the local authority to have made the decision under section 10 of the Licensing Act 2003 in anticipation of its commencement 12 days later. Section 13 provides as follows: “Anticipatory Exercise Powers – Where an Act which (or any provision of which) does not come into force immediately on its passing confers power to make subordinate legislation, or to make appointments, give notices, prescribe forms or do any other thing for the purposes of the Act, then, unless the contrary intention appears the power may be exercised, and any instrument made thereunder may be made so as to come into force at any time after the passing of the Act so far as may be necessary or expedient for the purpose- (a) Of bringing the Act or any provision of the Act into force; or (b) Of giving full effect to the Act or any such provision at or after the time when it comes into force.”

The High Court dismissed the judicial review application (with costs to Islington) and upheld the lawfulness of the decision to reduce the club’s hours at the Review application and the subsequent decision of the magistrates’ court on appeal.

In the Court of Appeal

The Appellant appealed to the Court of Appeal and was granted leave. The Appeal was heard before Longmore LJ, Etherton LJ and Sir David Keene.

In short, the Court of Appeal held in a judgment published on 20 April 2011 that regardless of the propriety of the original delegation in 2005, the Council had clearly resolved in each and every subsequent year to establish four sub-committees and had properly delegated their licensing functions.

In so far as the contested delegation of authority from the Assistant Director to her licensing officers to consider whether representations are “relevant”, the Court of Appeal also felt able to give a “short answer” to the Appellant’s submission that there had been no valid sub-delegation. Since there was never any suggestion that the resident’s submission was in fact “frivolous or vexatious” and in any event the sub-committee itself would not have taken it into account if it was (the role of the licensing officer being akin to that of a filter), there could be no sustainable submission that the licensing sub-committee took into account something which it should not have done even if the submission about the licensing officer’s delegated authority was correct. Moreover even if the licensing officer did not have authority to consider the representation the Court would have exercised its “narrow and exceptional discretion” not to quash the decision even if it was shown to be ultra vires. The Court accepted Islington’s submissions that the points raised were of “arid technicality”.

The Court found itself able to resist the temptation to express a view on the remaining arguments involving section 101 LGA 1972 and section 13 Interpretation Act. The decision of the High Court in this regard therefore remains good law.

In argument over costs the Court reiterated the standard principle that costs involved in a Respondent voluntarily attending an oral permission for leave hearing were not generally recoverable unless the Judge specifically awarded those costs.

Postscript: On 19 May 2011 the Applicant sought permission to appeal to the Supreme Court. As of today that application is outstanding.

Gary Grant practices from Ely Place Chambers in London: www.elyplace.com.