Proud, R (on the application of) v Buckingham Pubwatch Scheme & Anor

Decisions by private licensees to exclude a person from their own premises remain private decisions, even where licensees exchange information or act collectively. Police advice, support or assistance does not convert those decisions into the exercise of public functions. The absence of an effective private-law remedy does not itself make a dispute amenable to judicial review or the Human Rights Act 1998. A purported association will not readily be amenable to judicial review where it has no constitution, finances, fixed membership, rules or coercive decision-making structure.

The claimant sought permission to apply for judicial review of a decision attributed to the Buckingham Pubwatch Scheme. Following an incident at and near a public house, the claimant was excluded from pubs participating in the scheme, initially for life and subsequently for three years, subject to automatic renewal following a further reported incident.

The renewed application followed refusal of permission on the papers by Simon J. The claimant argued that the scheme was a public authority or a person exercising functions of a public nature under section 6 of the Human Rights Act 1998, particularly because of collective action and police involvement. The central issue was whether the decision was amenable to judicial review or to a claim under the Human Rights Act.

1. Permission refused. The claim was unarguable on the issue of justiciability.
2. Public houses are private premises. Each licensee has individual rights to decide whom to admit and whom to serve with intoxicating liquor, subject to unlawful discrimination and licensing obligations. A collective decision by licensees to exchange information or adopt another licensee’s exclusion does not alter the individual character of each decision.
3. The participation or support of the police does not transform the decisions into public functions. The police may properly advise or assist in maintaining public order, including under section 143 of the Licensing Act 2003, but responsibility for excluding individuals remains with each licensee.
4. The court considered the approach in YL v Birmingham City Council and others [2007] UKHL 27 applicable to private commercial operators. The absence of public funding, special statutory powers or compulsory powers, together with the ability to accept or reject customers, supported the conclusion that the functions were private.
5. The evidence did not establish a genuine collective decision-making body. The scheme had no constitution, finances, fixed membership, rules or independent mechanism making its decisions binding. It was therefore highly unlikely to be amenable to judicial review or to fall within section 6 of the Human Rights Act.
6. The lack of an effective private-law remedy did not create public-law jurisdiction. The merits were not finally determined, although the judge was not persuaded that they would be arguable if the claim had been justiciable.
7. There was no order as to costs. The ordinary rule, reflected in Mount Cook, is that costs on a renewed permission application are generally limited to preparation of the acknowledgment of service. The exception for exceptionally full argument did not apply because the substantive arguments had not been deployed in the acknowledgment of service.

This was a renewed application for permission to apply for judicial review after permission had been refused on the papers by Simon J. The Administrative Court refused permission.