Horsnell v Boston Borough Council

A market authority may refuse or terminate permission to use a market stall where the proposed use is unrelated to the market’s commercial purpose. A political campaigner who uses a subsidised stall to publish political material cannot obtain a binding licence requiring the authority to provide that facility where doing so would amount to prohibited assistance under the Local Government Act 1986. A course of daily permissions does not, without contractual formation under the market terms, create a term or indeterminate licence. Refusing a stall for canvassing does not, without more, interfere with freedom of expression where canvassing itself remains permitted.

The claimant, a candidate for the United Kingdom Independence Party, sought to restrain Boston Borough Council from revoking permission to use a market stall for election campaigning. The parties agreed that the application should be treated as the trial of the action. The claimant argued that he had a term or indeterminate licence and that its termination breached contractual rights, natural justice and public law duties. He also relied on R v Barnsley Council ex parte Hook [1976] 1 WLR 1052. The central issues were whether a binding licence had been granted, whether the Council could terminate or decline to renew it, whether the proposed use was within the Council’s powers, and whether Article 10 rights were engaged.

1. The application for injunctive relief was refused. The claimant had not established any entitlement to continued use of the stall.

2. The special protection recognised in R v Barnsley Council ex parte Hook [1976] 1 WLR 1052 concerned market traders using stalls for the commercial purpose of earning their living. It did not apply to a political campaigner using a stall for a purpose unrelated to the market’s function.

3. The evidence and the market terms did not establish a licence until 4 May or any other term licence. The relevant application form had not been completed, and clause 1.1 made permission conditional on completion of the casual trader’s application. At most, the claimant obtained a daily licence when he attended and the Council could decline to renew it.

4. Even if a term or indeterminate licence had existed, the Council could not lawfully provide the stall for the proposed purpose. A subsidised stall used solely to publish political material constituted financial or other assistance within section 2(3) of the Local Government Act 1986, while the Council itself was prohibited from publishing material designed to affect support for a political party by section 2(1). The Council was therefore obliged to refuse the arrangement. Any such agreement could not bind the Council, and the Council also had to have regard to the Statutory Code of Recommended Practice on Local Authority Publicity.

5. In those circumstances no substantial question arose concerning a public law duty to act fairly before withdrawing or refusing the permission. Article 10 was not infringed because the claimant remained free to canvass in the market; the Council merely refused to provide a stall from which to do so.