Raphael, R (on the application of) v Metropolitan Police Service (Rev 1)

A local authority’s decision is not invalid merely because it acts under the wrong statutory source of power, where another available power authorised the same act and the different provisions required no different considerations. A licensing committee could therefore establish sub-committees under Section 101 of the Local Government Act 1972 before the relevant delegation provision in the Licensing Act 2003 came into force. Alternatively, Section 13 of the Interpretation Act 1978 permitted anticipatory exercise of the delegation power. Formal delegation to a senior officer could also include informal delegation to an appropriate officer within that department where efficient administration plainly required it. The challenge failed absent any demonstrated unfairness, irrelevant consideration or prejudice.

The claimant owned a nightclub whose premises licence was reviewed following an application by the police and a supporting representation. A licensing sub-committee reduced the permitted operating hours. The claimant appealed to the magistrates’ court, which upheld the decision, and then sought judicial review.

Permission was ultimately granted only on issues concerning the authority of the licensing sub-committee and the licensing officer who assessed whether a representation was frivolous or vexatious. The central questions were whether delegation made before the relevant provisions of the Licensing Act 2003 came into force was valid, whether anticipatory statutory powers could be used, and whether the officer had authority to perform the filtering function.

1. The claim was dismissed. The licensing committee’s January 2005 appointment of sub-committees was valid under Section 101 of the Local Government Act 1972, which supplied an available power to arrange for the discharge of functions by a sub-committee. The committee’s mistaken belief that it was acting under the Licensing Act 2003 did not invalidate the decision because the competing provisions were materially identical and required no different considerations.

2. The same result followed under Section 13 of the Interpretation Act 1978. Establishing the sub-committee was doing an act for the purposes of the 2003 Act. It was expedient to establish the delegation arrangements before the substantive licensing functions came into force, and the Act’s staged commencement provisions did not disclose a contrary intention.

3. The later annual resolutions approving licensing sub-committees also repeatedly adopted and ratified the delegation scheme. The change in the committee’s terms of reference did not show that it lacked power before the wording was amended.

4. The licensing officer lawfully assessed whether the representation was frivolous or vexatious under section 52(7). Although formal delegation had been made to the assistant director, ordinary departmental administration permitted the function to be carried out by an officer working within that department. It was inconceivable that the committee intended the assistant director personally to perform every such assessment. In any event, the representation had not been suggested to be frivolous or vexatious, and the sub-committee could have considered it even if it had been.

5. The absence of demonstrated unfairness, irrelevant considerations or prejudice provided further confirmation that relief should be refused. Costs were subject to detailed assessment, with £15,000 payable on account and the stay on the magistrates’ court costs order lifted after 28 days. Permission to appeal was refused.

1. Highbury Corner Magistrates’ Court: upheld the licensing sub-committee’s decision and dismissed the claimant’s appeal on 5 January 2009.
2. High Court (Administrative Court): dismissed the judicial review claim. Permission to appeal was refused.