The Art (and law) of Delegation under the Licensing Act 2003

In Queen (Raphael) –v- Highbury Corner Magistrates Court and the London Borough of Islington [2010] EHWC 1502 (Admin), a licensee sought to challenge a licensing committee decision by attacking the council's arrangements for delegation. Gary Grant, who appeared for Islington, analyses the case.

Orleans is a perfectly ordinary nightclub near Finsbury Park station in the London Borough of Islington. It enjoyed the opportunities provided by 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 to communicate 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, in 2008 police took the responsible and not unexpected step of lodging 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 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 profits reduce. What then for Mr Raphael?

Necessity is often the mother of invention and in this case the invention was supplied by Mr Raphael’s legal advisors. Neither the substance nor merits of the decision to reduce the hours could be attacked following the unsuccessful magistrates’ court appeal, so his lawyers scrutinised 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 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 any 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 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 consider Review applications and licensing officers would deal with associated administrative tasks  (e.g. to decide whether a representation from a resident is “frivolous or vexatious”).

The dates here are crucial. Because although the decision to adopt the scheme of delegation took place on 26 January 2005 the specific power to delegate licensing functions under section 10 of the Licensing Act 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 exercised a power to delegate functions before that power had actually been brought into force.

His lawyers launched Judicial Review proceedings against Islington (and the magistrates’ court) in an attempt to reverse the decision to cut back the club’s hours and seeking damages. They argued that since the crucial section 10 was not in force at the time of the purported delegation, the sub-committee that had later considered the Orleans Review in 2008 had no delegated power to do so.

Similarly, it was claimed, the licensing officer who dealt with the resident’s representation also lacked the delegated power to do so. In other words, since Islington had “jumped the gun” by 12 days in January 2005 their purported delegation of licensing functions to sub-committees and licensing officers was of no effect. Any subsequent decision by the licensing sub-committee on Review was therefore a nullity. Perhaps unsurprisingly, Islington did not agree with this analysis and vigorously resisted the judicial review.

This interesting legal quandary was resolved following full High Court judicial review proceedings heard before HH Judge Mackay QC, sitting as a Deputy High Court Judge. The case is reported as Queen (Raphael) –v- Highbury Corner Magistrates Court  and the London Borough of Islington [2010] EHWC 1502 (Admin).

In his judgment HH Judge Mackay dismissed Mr Raphael’s claim and accepted Islington’s submissions that:

1. Regardless of the fact that section 10 of the Licensing Act 2003 had not come into force at the time the scheme of delegation was approved, there existed (at the time) 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).
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. Moreover the delegation scheme was repeatedly adopted and ratified by further decisions of the Licensing Committee in the years after section 10 came into force.
3. In addition, the 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. The rarely relied upon 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 therefore 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. The Judge refused to grant the applicant leave to appeal. Mr Raphael has since applied directly to the Court of Appeal for permission to appeal and a decision is currently awaited.

Gary Grant is a licensing barrister at Ely Place Chambers in London: www.elyplace.com. He acted for the London Borough of Islington in both the magistrates’ court appeal and (led by Nigel Giffin QC) in the High Court judicial review proceedings.