Barry, R (on the application of) v Liverpool City Council

A local authority may require entertainment-licensees to employ only registered door attendants where that condition reasonably advances safe and lawful operation of licensed premises. The majority held that Local Government Act 1972, section 111 authorised the council to establish the registration scheme because it was conducive to, and effectively necessary for, the exercise of its entertainment-licensing functions.

A scheme using police checks did not unlawfully delegate the council's decision-making function where the council retained control. However, a registration fee charged directly to attendants was unlawful. A charge requires express statutory authority or necessary implication, and the statutory power to charge licensees provided the prescribed means of recovering scheme costs.

The claimant was a self-employed doorman at premises licensed for public entertainment in Liverpool. The council introduced a standard licence condition requiring licensees to use door attendants registered under its scheme. Registration involved police checks, a fee of £50 if registration succeeded, and an appeal panel for refusals.

After Maurice Kay J refused permission for judicial review on 7 April 2000, Schiemann LJ granted permission and directed that the substantive application be heard as an appeal. The claimant challenged the scheme's statutory basis, the registration fee, the police role and the availability of relief despite delay.

1. Appeal allowed on the limited issue of charging, but no relief granted. All members of the court held that the council could lawfully require entertainment-licensees to use registered doormen. The registration scheme pursued the legitimate licensing objective of ensuring that entertainment premises were safe and lawful and did not create an impermissible informal occupational licensing regime.
2. Statutory power for the scheme. Lord Phillips MR, with whom Dyson LJ agreed, held that the power to establish and operate the scheme arose under section 111 of the Local Government Act 1972. The scheme was conducive to, and a practical prerequisite for, enforcing licence conditions that only fit and proper persons should work as doormen. Kennedy LJ reached the same conclusion through the powers to impose licence conditions and prescribe standard conditions in Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982. Dyson LJ considered that those Schedule 1 powers authorised the condition only once the scheme had been established.
3. Fee unlawful. The £50 registration fee could not be charged. Applying the strict requirement for express authority or necessary implication for a charge, the court held that the Schedule 1 power to charge licensees supplied the statutory route for recovering the costs of the licensing scheme. Section 111 could not imply a separate power to charge door attendants.
4. Police involvement. Police advice on suitability did not amount to an unlawful delegation because the council retained the registration decision and an applicant could pursue the appeal procedure. Kennedy LJ also considered that one uninvolved senior police officer on a panel otherwise comprising six councillors would not create a real danger of bias. That issue was not directly raised by the claimant's own application.
5. Relief. The claimant had not paid a fee. A declaration was therefore unnecessary against a responsible public body, notwithstanding the finding that the fee was unlawful.

• Court of Appeal (Civil Division) In this judgment, [2001] EWCA Civ 384, the court allowed the appeal only as to the unlawfulness of the registration fee, but granted no relief.
• Court of Appeal (permission stage) On 17 July 2000, Schiemann LJ granted permission and directed that the substantive judicial-review application be heard as an appeal.
• High Court Maurice Kay J refused permission to apply for judicial review on 7 April 2000.