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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barry, R (on the application of) v Liverpool City Council [2001] EWCA Civ 384 (21 March 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/384.html
Cite as: [2001] EWCA Civ 384, [2001] BLGR 361, (2001) 3 LGLR 40

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Neutral Citation Number: [2001] EWCA Civ 384
Case No: C/2000/6442 FC3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAURICE KAY J

Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 21st March 2001

B e f o r e :

THE MASTER OF THE ROLLS
(LORD PHILLIPS)
LORD JUSTICE KENNEDY
and
LORD JUSTICE DYSON

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R v Liverpool City Council

Ex parte Karl Barry

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Timothy King QC and John De Bono (instructed by Kilner & Polson, Liverpool for the applicant)
Vincent Fraser (instructed by Solicitors Business Unit, Liverpool City Council for the respondent)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE KENNEDY :

    Introduction

  1. The Local Government (Miscellaneous Provisions) Act 1982 gives to local authorities the task of licensing public entertainments. A licence may be granted subject to conditions, and the local authority can prescribe standard conditions. Encouraged by the Home Office, Liverpool City Council, like many other local authorities, on 23rd October 1997 decided to amend its standard condition 21 so as to require licensees and their appointed managers to 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 the local authority prior to the commencement of their duties.
  2. That standard condition was imposed on annual licences as they came up for renewal from 1st April 1998. In September 1998 the appellant, Karl Barry, was a self-employed doorman working at the Beluga Bar in Wood Street, Liverpool. He says that despite considerable publicity he first became aware of the need for registration when his employer received from the Licensing Officer a letter dated 15th September 1998 advising him of the amendment to condition 21, and enclosing Guidance Notes to assist licensees and those who might wish to seek registration. The appellant did not seek registration. Instead, on 31st March 1999, from the address of his solicitors, he wrote a rather strangely worded letter in which he seems to be challenging either the validity of the door registration scheme or enquiring as to the right of appeal in relation to decisions taken under it. The Licensing Manager replied on 1st April 1999, and these proceedings were commenced on 30th April 1999. In his amended Notice of Application for leave to apply for judicial review the appellant challenges -
  3. "(a) Decision of Liverpool City Council on a date uncertain but possibly 23 October 1997 to impose a mandatory condition for the grant of public entertainment licences by the City Council (save for exempted premises) that all attendants and door staff be registered with the City Council.

    (b) Decision of Liverpool City Council on about 15 September 1998 to start registering attendants and door staff under the said condition."

    Proceedings to date

  4. When the matter came before Turner J on paper he ordered that the application be renewed in open court on notice to the respondent. Thus there was a full hearing before Maurice Kay J at the end of March 2000, and in a judgment which he delivered on 7th April 2000 he refused permission to seek judicial review. The application for permission was renewed in the Court of Appeal before Schiemann LJ who on 17th July 2000 granted permission and ordered that the substantive application be heard as an appeal in this court. We heard it at Manchester on 28th February and 1st March 2001.
  5. Background

  6. Before turning to the details of the registration scheme and the statutory provisions of the 1982 Act I should say something about the background to the scheme. As appears from the affidavit of Mr Culkin on behalf of the respondent, Liverpool, like other large cities, has a large night time entertainment sector. In January 2000, when the affidavit was sworn, there were over 350 premises licensed under the 1982 Act as venues for public entertainment, and such premises normally have door staff. Both locally and nationally there has been concern about door staff. Such staff should reduce the risk of violence and drug dealing, but inappropriate staff have increased that risk. The research to which Mr Culkin refers shows that control of door staff has been seen as a means to control the supply of illegal drugs within licensed premises, and has also involved extortion and money laundering. Since about 1990 Liverpool has been wrestling with this problem. Initially licensees were required to keep a register of door staff, but that proved ineffective. In 1994 the Council met the licensees, who wanted an effective registration scheme. In December 1995 the Home Office sent out Best Practice Guidance to those local authorities and police forces wishing to set up local registration schemes for door staff, based on the experience of schemes already in operation, and Liverpool took account of that Guidance in formulating the scheme which it introduced on 1st April 1998.
  7. The Registration Scheme

  8. The details of the Scheme are set out in the Guidance Notes which accompanied the letter of 15th September 1998, but Mr Culkin summarises them as follows -
  9. "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 a 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 decides whether or not to grant the application."

  10. We were shown a copy of the standard letter sent by the local authority's Licensing Officer to an applicant when registration is refused. Not only does it advise him of his right to appeal. It also indicates how he can discuss the matter with the police if he wants to do so, and that gives him the opportunity to discover informally what criminal convictions are recorded against him. In order to protect his privacy that information will not have been disclosed up to that point, but if he chooses to appeal the police will explain to the panel in his presence why he is considered to be unsuitable. The panel consists of six councillors and one senior police officer of the rank of superintendent or above, who has not otherwise been involved with the application. In the first year to April 1999 865 applications for registration were received by Liverpool and 576 permits were issued. There were 32 appeals, 18 of which were allowed.
  11. Issues

  12. Mr Timothy King QC for the appellant submits that -
  13. "(1) The creation of what he describes as a 'mandatory doorkeepers' registration scheme' through the imposition of a condition on the grant of a public entertainment licence is unlawful in principle because it is not expressly or impliedly authorised by Parliament.

    (2) Even if such a scheme could be operated lawfully, the Liverpool City Council scheme is unlawful, and so the condition which imposes that scheme is unlawful.

    (3) Despite the delays in bringing the application before the court the lawfulness of the scheme is a matter of such fundamental importance that relief should not be refused under section 31(6) of the Supreme Court Act 1981."

    Statutory Provisions

  14. The relevant statutory provisions are to be found in the 1982 Act, Part 1 and Schedule 1 of which deal with Licensing of Public Entertainments. In schedule 1 paragraph 1(4) reads -
  15. "The appropriate authority may grant to any applicant, and from time to time renew, a licence for the use of any place specified in it for all and any of the entertainments to which this paragraph applies on such terms and conditions and subject to such restrictions as may be so specified."

  16. Paragraphs 6(1) and 6(4) read -
  17. "(1) An applicant for the grant, renewal or transfer of an entertainment licence in respect of any place shall give not less than 28 days notice of his intention to make the application to -

    (a) the appropriate authority;
    (b) the Chief Officer of Police;
    (c) the Fire Authority.

    (4) In considering any application for the grant, renewal or transfer of an entertainment licence, the appropriate authority shall have regard to any observations submitted to them by the chief officer of police and by the fire authority."

    That, as Mr Fraser for the local authority pointed out, demonstrates Parliament's expectation that the police will be consulted and heard in relation to licensing.

  18. Then paragraph 7(1), subject to immaterial exceptions, states -
  19. ".... an applicant for the grant, renewal or transfer of an entertainments licence shall pay a reasonable fee determined by the appropriate authority."

    Paragraph 11 sets out the power to prescribe standard terms, conditions and restrictions, and the relevant parts read -

    "(1) The appropriate authority may make regulations prescribing standard conditions applicable to all, or any class of, entertainments 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.

    (4) Where the appropriate authority have made regulations under sub-paragraph (1) above, they shall, if so requested by any person, supply him with a copy of the regulations on payment of such reasonable fee as the authority may determine."

    That, Mr Fraser submits, is another indication of Parliament's intention that public entertainment licensing should be self-financing.

  20. Paragraph 12 deals with enforcement. It is an offence to use premises other than in accordance with the terms and conditions of the licence.
  21. Unlawful in Principle?

  22. Mr King reminded us of Lord Templeman's observation in Hazell v Hammersmith L B C [1992] 2 AC 1 at 22B that -
  23. "A local authority, although democratically elected and representative of the area, is not a sovereign body and can only do such things as are expressly or impliedly authorised by Parliament."

    As Mr King points out, the statute says nothing about registration schemes for door attendants, but, as the Home Office said of public entertainment licensing in a circular addressed to local authorities in 1982, shortly before the 1982 Act came into force -

    "The purpose of the licensing scheme is to introduce a uniform system of control to ensure public health and safety over places of public resort and to minimise the nuisance caused to the immediate neighbourhood."

  24. Mr King accepts that as a convenient expression of the statutory purpose, and he does not seriously challenge Mr Fraser's submission that in the light of experience Liverpool City Council was entitled to conclude that a registration scheme for door attendants such as this local authority has introduced would contribute to public health and safety in places of public resort, and would help to minimise the nuisance caused to the immediate neighbourhood. Nevertheless Mr King submits that the registration scheme is impermissible because the statute is only concerned with control of those who are involved in the organisation and management of the entertainment, and the provision of the place where the entertainment is to take place. It is not directed at control of those who work there. Mr King complains that if the local authority is right it can use the provisions of the Act to impose on employees an informal licensing system without statutory control.
  25. As Mr King points out, the 1982 Act deals in some detail with other local authority licensing powers - control of sex establishments, street trading, etc.- and in the Local Government (Miscellaneous Provisions) Act 1976 there are provisions in relation to hackney carriages and private hire vehicles. Mr King invites us to note that they include provisions for the licensing of drivers. He submits that if registration of workers can be achieved by resort to general powers such detailed provisions must have been unnecessary. But, as Glidewell J pointed out in R v Huntingdon D C ex parte Cowan [1984} 1 All E R 58 at 64 the various parts of the 1982 Act appear to be separate self-contained codes apparently drafted without reference to each other, and that of course applies with even greater force when an attempt is made to compare a code in the 1982 Act with one in a statute enacted six years earlier. It is immaterial that, as Mr King points out, the issues in Cowan were very different to those with which we are concerned. The observations about the futility of attempting to derive anything from a comparison of statutory codes were of general application.
  26. The point which, to my mind, Mr King's submissions did not really address is why if, as would seem to be the case, greater control of door attendants will contribute to the statutory purpose by improving public health and safety at places of public resort and minimising the nuisance caused to those in the immediate neighbourhood, the local authority should be prevented from using their powers to impose conditions in order to achieve that laudable end. Indeed Mr King half concedes the point by accepting that the local authority can impose a condition that door attendants should be "responsible" or "fit and proper", or above a certain age. Such requirements would, he submits, be quite different from a technical regimented scheme. But in my judgment the difference is illusory. In each case all that the local authority is doing is using its statutory powers for a proper purpose. As Mr Fraser points out, this local authority knows from experience that it is no use leaving it to licensees to ensure that only fit and proper attendants are employed. In fairness to licensees they are at a disadvantage. They have no access to criminal records, and they may well be subject to very considerable pressures at street level so, as they demonstrated at the meeting in 1994, they need an effective registration scheme to enable them to see that only fit and proper attendants are employed. The scheme which has been introduced is a little elaborate because it has to cater for an applicant's right to privacy in respect of his criminal convictions, and yet be fair. It has not been suggested to us that the final product is in any way irrational, although Mr King did submit that it is wide and disproportionate, and infringes the individual's right to work. Of course the scheme is wide, in the sense that it applies to everyone who seeks registration, but I do not see how it can be said to be disproportionate, and the answer to the alleged infringement of the right to work is that if an applicant has convictions of a type which render it inappropriate for him to work as a door attendant then his right to work in that occupation ought to be infringed. That is no doubt why, we are told, over 100 other local authorities have broadly similar schemes. Despite Mr King's persuasive advocacy it seems to me to be clear that Liverpool City Council was entitled to make use of the provisions in paragraphs 1(4) and 11 of schedule 1 of the 1982 Act by making it a condition that licensees employ only doormen registered in accordance with the City Council's scheme. The City Council does not need to rely on the extension of its powers to be found in section 111 of the Local Government Act 1972, to which I will turn later in this judgment. I need not therefore consider Mr King's submissions as to why section 111 cannot be a sufficient statutory basis for the implementation of the registration scheme.
  27. Oppression

  28. Mr King submitted that it was oppressive for the City Council, in the absence of an express statutory power, to impose the condition that required door attendants to be registered. That is a rationality challenge based on a passage in de Smith, Woolf and Jowell's Judicial Review of Administrative Action 5th Edition at paragraph 13 - 046 and 13 - 047 which reads -
  29. "Official decisions may be held unreasonable when they are unduly oppressive because they subject the complainant to an excessive hardship or an unnecessarily onerous infringement of his rights or interests ...... Since the claim is essentially abuse of power, in the sense of excessive use of power, each case must be considered in the context of the nature of the decision, the function of the particular power and the nature of the interests or rights affected. We shall see, therefore, that the intensity of review (the margin of appreciation allowed the decision-maker) will differ in different circumstances, and that the courts impose particularly anxious scrutiny in cases where fundamental human rights have been infringed."

  30. Mr King submits that unless the appellant is registered under the scheme he is unlikely to find employment as a club door keeper in Liverpool, and as similar schemes operate elsewhere he must in effect submit to registration or lose his livelihood. Furthermore the licence holder will be deprived of a man he has chosen to employ.
  31. To that submission there are, as Mr Fraser points out, two answers. First, there are many door attendant and security jobs at premises which do not require a public entertainment licence and, secondly, if any one is to be employed in that capacity at premises which do require such a licence then, for the reasons already given, the public interest requires that the employee is a fit and proper person for that task. The local authority was entrusted by Parliament with power to take steps capable of achieving that result. They did so, requiring it would seem no more by way of qualifications than the public interest would require, and accordingly it is not possible to regard what was done as irrational, unduly oppressive or an excessive use of power.
  32. Registration Fee.

  33. In relation to this aspect of the case Mr King's starting point is the generally accepted proposition that if a charge is to be made there must be statutory authority for it, expressed or implied (see R v Richmond LBC ex parte McCarthy and Stone {1992] 2 AC 48 at 67B to 68B, citing AG v Wilts United Dairies Ltd [1921] 37 TLR 884). As Mr King points out, in the present case there is no express statutory power to charge an applicant for his registration as a door attendant anything, and, as Lord Lowry said in McCarthy and Stone at 70H -
  34. "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."

    In addition to those provisions of the 1982 Act to which I have already referred the only relevant statutory provision is section 111 of the 1972 Act which, so far is material, reads -

    "(1) without prejudice to any powers exerciseable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any their functions.

    (3) A local authority shall not by virtue of this section raise money, whether by means of rates, precepts or borrowing, or lend money except in accordance with the enactments relating to those matters respectively."

    That was the section which was relied upon by the local authority in McCarthy and Stone to justify a charge for pre-planning application advice, but the giving of such advice was not a function of the council. As Lord Lowry said at 70B -

    " .... 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."

    Lord Lowry, with whom the other members of the House agreed, was not prepared to say that there can never be a case in which the power to charge arises by necessary implication, but he said at 74H -

    "The power to give pre-application advice is neither a duty nor a discretionary express power, but is a subsidiary power arising by virtue of section 111(1) (which has codified the common law), because it is calculated to facilitate, or is conducive or incidental to, the discharge of one of the council's functions. To charge for the exercise of that power is, at best, incidental to the incidental and not incidental to the discharge of the functions"

  35. In Credit Suisse v Allerdale B C [1997] QB 306 the court was concerned with the validity of a local authority guarantee given to a company to develop a site with a leisure pool and time share units. Neill LJ considered the genesis of section 111 and said at 331H that -
  36. "In considering the implied powers of a local authority under section 111 of the Act of 1972 it is first necessary to identify the relevant statutory functions."

    As Mr King emphasises, the statutory function in the present case is to grant or refuse a public entertainment licence. At 332B Neill LJ went on to say that -

    "It is also necessary, however, in any particular case to examine the context in which the implied powers are to be exercised."

  37. The financing context was of particular significance in the Allerdale case, but Neill LJ then posed this question at 332E -
  38. "Where Parliament has laid down a route whereby a local authority can obtain the financial resources to enable it to carry out its statutory functions, is it possible to say that this scheme facilitates or is conducive or is incidental to the discharge of the relevant functions?"

  39. Mr King submits that a similar approach should be adopted here, where, in paragraph 7 of Schedule 1 to the 1982 Act, Parliament has laid down a route whereby the local authority can obtain the financial resources to enable it to carry out its statutory functions
  40. In my judgment that is a persuasive submission, which Mr Fraser attempted to answer by reference to two recent decisions of this court. In R v Greater Manchester Police Authority and others ex parte Century Motors (Farnworth) Ltd, 24th March 1998 unreported, the court had to consider the statutory power of a constable to remove or arrange for the removal of abandoned vehicles. The police authority had entered into an agreement with Automobile Association Developments Ltd (AADL) under the terms of which AADL provided a comprehensive service for dealing with broken down, abandoned and stolen motor vehicles under the control, and supervision of the police. AADL paid 20,000 to the authority and a charge of 40 per incident was levied by AADL on each recovery operator used by them. The police authority maintained that vehicle recovery is just one example of an area of police operations where specialist civilian expertise is required to maintain an adequate, effective and efficient police force. That was accepted at first instance and in the Court of Appeal, and the attack on the charges was rejected on the basis that the charges were no more than the means of funding an appropriate vehicle recovery scheme. What seems to me to be of importance is that, unlike the present case, there was no other statutory right to charge to which the police authority could resort in order to fund the scheme which was judged to be necessary if the authority was to be free to discharge its principle tasks.
  41. The second case which Mr Fraser invited us to consider was Wards Construction (Medway) Ltd v Kent County Council [1999] JPL 738. In connection with a housing development the developer agreed with the housing authority to pay 65% of road improvement costs. Problems then arose, and one of the issues considered by the Court of Appeal was whether under section 111 of the 1972 Act the highway authority could obtain a contribution from the developer in relation to land acquisition costs. In the end that issue did not arise because the court found that under section 278 of the Highways Act 1980 the highway authority had express authority to obtain a contribution from the developer in respect of such costs, but at 747 Henry LJ said that if the power to charge had not arisen under section 278 it would have arisen under section 111 of the 1972 Act "by necessary implication". Ward LJ agreed but Sir Christopher Staughton's provisional view was to the opposite effect. In my judgment the Kent County Council case is of no assistance to Mr Fraser because even if the views of the majority had been a necessary part of the decision in that case, and they were not, in the present case it is impossible to say that the power to charge door attendants a registration fee arises by necessary implication when their registration forms part and parcel of a public entertainment licence scheme which, as Mr Fraser points out, is apparently intended to be self-financing, and which incorporates a statutory power to finance it by charging licensees. Mr Fraser accepts that the cost of the registration scheme could be recovered in that way, but says that in the opinion of the local authority it is fairer to charge door attendants a registration fee rather than to incorporate the registration scheme costs into the licence fee, because an individual door keeper may work for different licensees. If the costs are spread I have difficulty in understanding why one system is said to be fairer than the other, but that is of no significance when, as I see the position, Parliament has prescribed the only way in which the costs of the registration scheme can be passed on. That avenue having been made available there can be no resort to necessary implication to justify any other route.
  42. The Role of the Police

  43. Mr King's final ground of complaint in relation to the Liverpool registration scheme relates to the role of the police. He submits first that under the scheme the initial decision is unlawfully delegated to the police, and secondly that the appeal process is tainted by the presence of a senior police officer on the adjudicating panel.
  44. As to the first submission I accept that an applicant will not be registered at once if the police advise that he is not suitable for registration, and that initially (to protect the applicant's privacy) the police do not explain why they regard him as unsuitable. But, as Mr Fraser emphasised, the fact that clearance has to be obtained from a third party (such as the police, or a medical adviser) before an application will be entertained with any realistic prospect of success does not mean that the body charged with the decision whether or not to grant the application has unlawfully delegated its responsibilities to the third party. The police do play a key role, but it is the Licensing Officer who writes to the applicant to say if his application for registration is refused and that retention of control is important (see Ellis v Dubowski [1921] 3 KB 62 and Mills v LCC [1925] 1 KB 213). Furthermore, as Mr King recognises, the first round of the application process cannot be considered in isolation. The applicant can discuss the matter with the police, and he is so informed. If not satisfied he can appeal, and the police attitude to his application can then be fully explored. Mr King submits that the appeal process cannot put matters right because of the presence of a senior police officer from the organisation which raised the original objection. Having been referred to section 102 of the 1972 Act Mr King accepts that the local authority was entitled to establish an appeal panel which had on it persons who were not themselves members of the authority, but he submits that objection could be taken to the presence of the senior police officer on the grounds of bias. As Mr Fraser points out, that is not something which this appellant has chosen to test in the normal way, by submitting an application. For all we know if an application had been submitted registration might have been granted without any need for an appeal, so the constitution of the appeal panel is not directly in issue, but having heard full submissions in relation to it I can find nothing objectionable about the way in which, were such a panel to be required, it would be constituted. We were taken to the passages from the speech of Lord Goff in R v Gough [1993] AC 646 which were cited by Lord Bingham CJ in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 2 WLR 870. The test is clear. An appellate decision could only be impugned if it could be said that because of the presence of a senior police officer from the same police force, albeit one with no previous connection with the application and outnumbered on the panel by six to one, there was a real danger of bias. That I would find difficult to accept, and, as Mr Fraser points out, the success rate in relation to appeals speaks for itself. Mr Fraser invited our attention to two nineteenth century cases involving the General Medical Council, and to the decision of this court in R v Crown Court at Bristol ex parte Cooper [1990] 2 All E R 193 to show that it is not necessarily objectionable for a member of an adjudicating panel to have had some involvement with the matter at an earlier stage, but in my judgment for present purposes it is unnecessary to go that far. Suffice to say that the police have an obvious and important role to play in the registration scheme, and I cannot accept either of Mr King's criticisms of their role.
  45. Relief.

  46. That leaves only the question of relief. In my judgment the registration scheme is lawful save for the requirement that a successful applicant must pay a registration fee of 50. The appellant has never paid any fee, so even if he had instituted these proceedings with reasonable expedition he would not be entitled to any relief other than at best a declaration as to the illegality of the registration fee. When the respondent is a responsible public body it is often considered unnecessary to make a formal declaration, and I am not persuaded that it is necessary to grant one here. Had the appellant been more successful it would have been necessary to consider the impact of section 31(6) of the Supreme Court Act 1981 having regard to the fact that in my judgment there has been undue delay in making this application for judicial review, and Mr Fraser is entitled to submit that certain forms of relief sought would be detrimental to good administration, but in the event that issue does not arise.
  47. LORD JUSTICE DYSON :

  48. I agree that the only ground of appeal that is made out is that in relation to charging and that no formal relief is necessary. I only wish to add a few words of my own on the ultra vires issue. I agree with the Master of the Rolls that the power to set up and operate the doorman registration scheme derives from section 111 of the Local Government Act 1972. At one stage, I thought that it derived from paragraph 11(1) of Schedule 1 of the Local Government (Miscellaneous Provisions) Act 1982, which provides:
  49. "The appropriate authority may make regulations prescribing standard conditions applicable to all, or any class of, entertainments 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"

  50. But setting up and operating the scheme cannot be brought under the umbrella of making regulations prescribing standard conditions applicable to entertainments licences. The regulations made by the Council requiring that doormen should be registered under the scheme were made on the premise that the scheme had already been set up. They prescribed as one of the standard conditions for the grant of an entertainment licence the condition that no person should be employed at the premises unless he had been registered for such purpose prior to the commencement of his duties. The power to set up the scheme cannot, however, be derived from the express language of paragraph 11(1).
  51. For similar reasons, I consider that the power to set up the scheme cannot be derived from paragraph 1(4) of the schedule, which provides:
  52. "The appropriate authority may grant to any applicant, and from time to time renew, a licence for the use of any place specified in it for all or any of the entertainments to which this paragraph applies on such terms and conditions and subject to such restrictions as may be so specified."

    The Council can only impose a condition that doormen be registered under the scheme under paragraph 1(4) once the scheme has been set up.

  53. But for the reasons given by the Master of the Rolls, the doorman registration scheme is conducive to the statutory functions of making regulations prescribing standard conditions under paragraph 11(1) and of imposing conditions for the grant of entertainments licences at premises under paragraph 4(1) of schedule 1 to the Act. Unless there is power to set up such a scheme, those functions cannot be exercised to impose conditions for the registration of those whom a licensee wishes to employ as doormen. There can be no objection to setting up a doorman registration scheme. It is designed to further the purpose of the Act, namely to ensure that the activities that are carried on at places of entertainment are safe and lawful. Moreover, the scheme is plainly not an irrational or even an unreasonable way of achieving that laudable objective. Mr King accepted that it was within the power of the Council to impose a condition that only fit and suitable persons should be employed as doormen. He also accepted that it was competent for the Council to impose a condition that no doorman should be employed unless he had obtained a diploma from a specified outside body. But, he submitted, a condition of registration under a scheme set up by the Council itself was fundamentally different, and was ultra vires. I do not agree. I can see no fundamental difference. All three conditions would be imposed by the Council in order to achieve the same goal, namely to ensure, so far as possible, that the places of entertainment are safe and free from crime.
  54. LORD PHILLIPS. MR

  55. The appellant attacks, root and branch, the arrangements made by the Liverpool City Council to try to ensure that those who are employed as doorkeepers by clubs within the city discourage rather than promote the illegal activities, including in particular the dealing in drugs, that has in the past made some places of public entertainment notorious. He contends that these arrangements constitute an unauthorised restriction on the right that he, and others, should enjoy to earn their livelihood. He has not sought to demonstrate that he has, in fact, been prevented from obtaining employment as a doorman by these arrangements, but attacks them on the ground that they fall outside the powers conferred on the Council by Part 1 and Schedule 1 of the Local Government (Miscellaneous Provisions) Act 1982.
  56. Interference with the right to work

  57. The relevant provisions have been set out by Kennedy L.J. in his judgment. They are in broad terms. They empower the Council to grant a licence for the use of a place for the purpose of entertainment of the nature of music and dancing "on such terms and conditions and subject to such restrictions as may be so specified". The first, and vital question, is whether those wide terms empower the Council to grant a licence subject to conditions governing the character and qualifications of those who are employed in the premises in question. As to this, Mr Timothy King, Q.C., for the appellant has conceded that the Council "could lawfully impose upon the licensee of a place of public entertainment a condition that only 'fit and proper persons' be employed as doormen at such a place. I consider that this concession is rightly made. Schedule 1 should be interpreted in such a way as to permit the Council to impose such conditions on a licence as are reasonably necessary to ensure that the activities that are carried on at the place of entertainment are both safe and lawful. To that end it is necessary that fit and proper persons are employed to man the doors.
  58. The principal aim of the scheme introduced by the Council in 1998 was modest. It was to ensure that those operating places of entertainment did not employ as doormen persons of bad character, as manifested by recent criminal convictions. Had the licence so specified in terms it would have been ineffective. Those operating clubs are not in a position to ascertain whether those who apply for jobs as doormen have criminal records. The scheme operated by the Council, with the cooperation and assistance of the police, solves this problem by placing on a register those of good character and excluding from the register those of bad character. The conditions of licences granted to the operators of clubs require them to select their doormen from those who are on the register.
  59. Mr King would not, as I understand it, object to a licence condition which resulted in club operators refusing to employ doormen of bad character, were this practicable. His objection is as to the manner in which this object is achieved. In his skeleton argument he put the matter thus:
  60. "It is conceded that the Respondent local authority could lawfully impose upon the licensee of a place of public entertainment a condition that only 'fit and proper persons' be employed as doormen at such a place. But such a condition is a far cry from the present one which goes fundamentally further by requiring that such doormen be registered in advance by the Respondent under a scheme which has no statutory controls whatsoever, whether by way of control of the grounds upon which registration can be denied or by way of appeal or otherwise. Such an interference by a local authority with the right of a person to pursue his livelihood without express statutory sanction raises an issue of fundamental principle. English law has long recognised the fundamental importance of a man's right to work without being unjustly excluded."

  61. This is emotive language, but I do not believe that it stands up to analysis. A condition on a licence that only 'fit and proper persons' may be employed as doormen prevents, if it is enforced, those who are not fit and proper persons from earning their livelihood as doormen in clubs licensed by the Council. If this is not objectionable, I do not see why it should be objectionable that these unfit persons should be identified in advance. If their exclusion from working in licensed clubs is objectionable, it must be objectionable however that exclusion is achieved. If it is not objectionable in principle, then I do not see how objection can be taken to the manner by which it is achieved on the ground that it is an unjustified interference with their right to earn a living.
  62. Ultra vires

  63. Mr King rightly observed that, if the Council has the right to operate a doorman registration scheme, this must be conferred by statute: Hazell v Hammersmith LBC [1992] 2 AC 1 at p.22. The 1982 Act says nothing about operating a doorman registration scheme. This is true and I think that it is necessary to look to section 111 of the Local Government Act 1972 for the authority to operate the scheme. That section provides:
  64. " Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after 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 or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

  65. Mr King argued that it was necessary first to identify the particular statutory function of the Council before it was possible to decide whether operating the doorman registration scheme was calculated to facilitate the discharge of that function. He referred us to Credit Suisse v Allerdale Borough Council [1997] Q.B. 306 and R. v Richmond on Thames B.C. ex parte McCarthy and Stone [1992] 2 AC 48. The former was a case where the operation of section 111 was held to be circumscribed by the statutory powers that control the conduct of local authority finances, and I do not consider that it affords much assistance in the present context. The latter considered the question of whether a local authority was authorised by section 111 to impose charges for the provision of advisory services which, themselves, were only authorised by section 111. The House of Lords held that this double invocation of section 111 was not legitimate. An activity, which was authorised only by virtue of section 111, could not, itself, be described as a 'function' of the local authority so as to permit the use of section 111 to charge for that activity. This case might have had relevance had the Council sought to rely upon section 111 to justify the charges imposed on registered doorman. I do not see how it bears on the question of whether the registration scheme itself is lawful. That turns simply on the question of whether it is calculated to facilitate, or is conducive or incidental to, the discharge of the Council's statutory functions.
  66. Mr King argues that the relevant statutory function is licensing the use of places of entertainment and that the registration scheme is not facilitative, conducive or incidental to the granting of licenses. In my judgment this is far too narrow an approach. To say that it is the function of the Council to grant licenses is almost meaningless. To give the function any meaning one must consider what the licence in question is intended to achieve. In the present case the purpose of licensing places of entertainment is to procure, by the conditions of the licence, that the activities carried on at the place of entertainment are safe and lawful. Procuring that result by licensing the places of entertainment is the relevant statutory function.
  67. Imposing a licensing condition designed to ensure that only fit and proper persons are employed as doormen is the direct exercise of a statutory function of the Council. The doorman registration scheme is not merely conducive to the efficacy of such a licensing condition. It is a prerequisite to it. Operators of clubs cannot themselves effectively vet applicants for the post of doormen in order to check their antecedents. Some external agency is needed to provide these operators with information as to those who are fit and those who are unfit to act as doormen. Why should not the Council, in order to introduce an effective licensing scheme, set up and operate a system of registration for those wishing to work as doormen on premises licensed by the Council? In my judgment this activity falls within the authorisation conferred by section 111.
  68. Involvement of the Police

  69. Mr King's arguments in relation to this aspect of the appeal do not lie happily with his primary attack on the registration scheme. First he argued that the Council was unlawfully delegating to the Police a licensing function which they were required to exercise themselves. This argument was based on the false premise that the registration scheme is a scheme for licensing doormen. It is not. It is a means of identifying those who are fit and proper persons to be employed by the operators of clubs. I cannot see why this should not have been achieved through the agency of some body that was entirely independent of the Council. If some training institute had operated a course for doormen and granted certificates of competency, I cannot see, in principle, why the Council should not have made it a condition that doormen would have to be certificated by this institute, subject always to the overriding test of rationality. In any event, for the reasons given by Kennedy L.J. Mr King's case on delegation is not made out on the facts. Nor, for the reasons given by Kennedy L.J., is there any valid basis for attacking the scheme on the basis that the presence of a police officer on the appeal panel infects it with bias.
  70. Charging

  71. I agree with Kennedy L.J. that the charges imposed on doormen are unlawful, for the reasons that he gives. It follows that I agree that this appeal should be allowed on this one narrow point. I concur in the conclusions of Kennedy L.J. in relation to relief.
  72. ORDER:
  73. Application for extension of time granted.
  74. Appeal allowed on limited grounds, but no relief to be granted.
  75. No order as to costs in respects of the appeal but the costs order of Mr. Justice Maurice Kay to be reinstated.
  76. Legal Aid assessment of claimant.
  77. Claimant's application for leave to appeal to the House of Lords refused.
  78. (Order does not form part of approved Judgment)


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