Who are Respondents to Appeals Under the Licensing Act 2003
July 2006
One matter which is still causing vexation to practitioners and wide divergence in practice across the country is the question of who is entitled to be a respondent when an applicant appeals to a magistrates court against the decision of a licensing authority.
It is Schedule 5 to the Licensing act 2003 (the 2003 Act) which sets out the provisions made in respect of appeals. Under the 2003 Act, decisions are made by the licensing authority and it is their decision which is in question on appeal. They are therefore respondents to the appeal.
The rights of a party to appeal are comprehensively listed within Schedule 5 and the author would argue so is the right of any party to be a respondent.
Schedule 5 effectively allows an appellant to appeal whenever he is dissatisfied with a decision made on his application. It also allows for any interested party or responsible authority to appeal if they made ‘relevant representations’ and are unhappy with the extent of grant or lack of conditions.
What is the position in respect of respondents?
As stated above, it is the decision of the licensing authority which has been appealed and therefore they are naturally the respondent. This is confirmed within Schedule 5, although there is no express provision as such. But on appeal by an applicant, a responsible authority nor interested party is having a decision questioned therefore they are not directly ‘responding’ to the appeal. The 2003 Act recognises the significant interest that the holder of the licence has and therefore Schedule 5 states they are also to be the respondent in addition to the licensing authority where an appeal is made by a person who made relevant representations. However, there is no provision within Schedule 5 stating that the person who made a relevant representation is entitled to be a respondent. It is therefore the author’s view that this means they are not entitled to be respondents on an appeal. This is especially so when one looks at corresponding provisions under the Local Government (Miscellaneous Provisions) Act 1982 (the 1982 Act) and the Licensing Act 1964 (the 1964 Act).
Under paragraph 14 of Schedule 1 to the 1982 Act the applicant/holder of a licence, was entitled to appeal in a number of given circumstances. However, there was no right of appeal for an objector who was unhappy with a grant of an entertainment licence. Similarly there was no provision to allow an objector to be a respondent where an appeal had been commenced. It was always the practice that the respondent local authority would call any objectors (quite often the police) as witnesses before the magistrates court (or Crown Court if it got that far). The position was similar under the London Government Act 1963 and the Cinema’s Act 1985.
Under Section 21 of the 1964 Act any person ‘aggrieved’ by a decision of the Licensing Justices in respect of an application made under Part 1 of that act had a right to appeal to the Crown Court. This therefore included a right of appeal not only for applicants but also objectors. Case law restricted the definition of a ‘person aggrieved’ to those immediately aggrieved and not merely consequentially aggrieved, but did allow appeals to be commenced by those not a party to the original proceedings. That 1964 Act was more explicit in respect of who were respondents to the appeal. Where an appeal was made against the grant of a Justices’ Licence, it was the applicant who was to be respondent and not the licensing justices (Section 22 (2)). It also provides that on an appeal against the refusal to grant a justices’ licence or against conditions imposed, “any person who appeared before the licensing justices and opposed the grant shall be respondent in addition to the licensing justices” (Section 22(3)). Further, on appeal against a decision to revoke a justices licence, any person on whose application the licence was revoked was to be a respondent in addition to the licensing justices (Section 22(3A)).
In addition, Section 81B of the 1964 Act provided similar provisions for appealing in respect of Special Hours Certificates, providing for persons other than the appellant to be a party to the appeal only if they had appeared before the Licensing Justices and made representations on the application.
It can therefore be seen that the 2003 Act does not contain the same provisions as the 1964 Act allowing objectors to be respondents on appeal. In the absence of such provision within the 2003 Act, it cannot be argued that there is such a right.
This is the view of the DCMS who, in November 2005, issued a document entitled `Guidance for Interested Parties – Appealing Licensing Decisions’. This contains the following Section “[N.B. If applicants appeal licensing authority’s decisions, responsible authorities such as the police, and interested parties, such as local residents, they made representations about the application, will not, by the terms of the Licensing Act be “responding parties” at appeal hearings……].”
Lucas –v- Westminster City Council
This was a decision by District Judge Purdy sitting at the Horseferry Road Magistrates Court on 11th November 2005. It was a preliminary ruling as to the parties to an appeal against a decision made on an application for variation of a Premises Licence. Both the appellant and the licensing authority argued they were the only parties who had locus in the appeal. Three interested parties argued that they had a right to appear as respondents. Three arguments were advanced on behalf of the interested parties. Firstly, that Schedule 5 should be construed so that references as to who is to be a respondent places of positive duty to be a respondent but does not exclude other persons. Secondly that Section 52 of the Magistrates’ Act 1980 would permit discretion for the Court to allow an interested party a respondent. Thirdly a Human Rights Act 1998 construction was proposed.
The District Judge decided the matter on the basis that Schedule 5 can properly be construed to imply that an interested party can, as of right, be a respondent. Having so held, he declined to rule on the further contentions but did note that the 2003Act was said to be Human Rights Act 1998 compliant.
For the reasons outlined above, it is submitted that this approach is incorrect, especially bearing in mind the terms of previous legislation.
It is also submitted that construing Schedule 5 so as prescribing those who are respondents could lead to the possibility of numerous respondents who were not parties to the original application. If Schedule 5 is not prescriptive then is there any legal justification for allowing only interested parties and responsible authorities who made relevant representations to be respondents? I would say not. The contention by the District Judge in Lucas -v- Westminster City Council that Schedule 5 restricts only those who are treated as an interested party by the Licensing Authority may feature in an appeal is not born out by anything within Schedule 5 itself. An equally valid argument would be to import the concept of a ‘person aggrieved’ as being entitled to respond. This would allow persons not previously a party to join the appeal as case law under the 1964 Act made clear. What then of the position of an interested party or responsible authority who did not make relevant representations, or failed to do so within the appropriate time limit. Why should they not contend that as the appeal is a hearing de novo they should be allowed to appear as respondents being person aggrieved by the grant of a licence? Therefore not limiting respondents to those expressly stated within Schedule 5 will open the floodgates and appeals could be run on points not previously raised at first instance.
Was this omission a mistake?
It has been argued that the lack of reference to interested parties/responsible authorities being respondents is a drafting error. Indeed this was put forward by the appellants in Lucas –v- Westminster City Council but their position was the error having being made, the court was bound by the terms of Schedule 5. It is not accepted that there is any substance in this argument. Nothing in the explanatory note published at the time the Bill was introduced to the House of Lords indicated that interested parties would appear as respondents to an appeal. The draftsman of the legislation would also have had knowledge of the provisions within the 1964 Act and clearly decided not to replicate them. The author has not been able to find anything within Hansard suggesting it was ever the intention of parliament that interested parties would be respondents to an appeal.
It is also of interest to note that the Gambling Act 2005 follow similar principals to the 2003 Act. It has the same concept of an interested party and similar appeal provisions in that where an appeal is brought by an interested party, the licence holder or applicant shall be a respondent in addition to the licensing authority. There is no provision making an interested party a respondent where an appeal is brought by an applicant or licence holder. This therefore appears to have been deliberate drafting in two acts of parliament.
Does the Magistrates’ Court have an inherent jurisdiction to allow interested parties or responsible authorities to be respondents?
This point was raised by the interested parties in Lucas –v- Westminster City Council but was not determined. It would however be appropriate to deal with the question as the Department for Culture, Media and Sport document ‘Guidance for Interest Parties: Appealing Licensing Decisions’, does state after confirming that responsible authorities and interested parties are not respondents under terms of the 2003 Act “….However, in such cases, an interested party could request that the court make it a responding party or the licensing authority could call them as a witness to back up the decision they made”
However, the Magistrates’ Court is a creature of statute and can only operate in accordance with acts of parliament. Although there are a limited number of cases where magistrates’ courts have been held to have inherent jurisdiction, these have been when dealing with its criminal (Simms –v- Moore [1970] 3 All ER 1) and family (Mayes –v- Mayes [1971] 2 All ER 397) jurisdictions and not when dealing with its civil jurisdictions.
Any appeal against the Local Authority decisions is by way of complaint (Rule 34 Magistrates’ Court rules 1981) The jurisdiction to deal with a complaint is provided by Section 52 of the Magistrates’ Court Act 1980 (as amended by the Courts’ Act 2003) which states
- A magistrates’ court has jurisdiction to hear any complaint.
- But subsection (1) is subject to a provision made by any enactment.
Therefore when dealing with matters by way of complaint, the Court only has powers provided by the particular enactment under which an appeal is made. It is therefore clear that the Magistrates’ Court has no inherent jurisdiction to allow interested parties or responsible authorities to be respondents on appeals.
Human Rights Act 1998
One argument often put forward is that failure to allow interested parties to be respondents would undermine their human rights. However, the claiming of human rights can be one of the most misused legal arguments. It is therefore important to examine the European Convention for the Protection of Human Rights and the Fundamental Freedoms. One of the Articles often relied upon is article 6 (1). This states ‘In the determination of his civil rights and obligations…., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law……’
In the absence of an existing civil right then Article 6 (1) is not engaged. The Article itself does not create a civil right it merely provides a way in which they are to be protected. There is no general right for residents to have locus standi in all court proceedings which affect decisions being made in their area.
Will interested parties representations be heard?
Having said all of the above, it does not mean that on an appeal the magistrates’ court cannot be made aware of relevant representations from interested parties and responsible authorities. It is clearly open for the licensing authority to call them as witnesses to give evidence which will support the decision taken by the licensing authority. Where they are not called as live witnesses then their written relevant representations can be adduced. It must however be a decision for the licensing authority to decide what position to take on an appeal and therefore what evidence to call. If a licensing authority takes the view that its original decision was unlawful either due to a misapplication of the relevant law or due to a finding of fact being made that was not supported by evidence, it should be free to compromise the appeal in anyway it sees fit. The licensing authority and the appellant should not be required to go through a full appeal in those circumstances because an interested party does not agree. The appeal provisions of the 2003 Act fully allows for the views of interested parties to be made known to the magistrates’ court in appropriate cases without them being respondents to the appeal.
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