Local government: Remote licensing hearings

On 28 April 2021 (in R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Native Authorities [2021] EWHC 1093 (Admin)) (Hertfordshire), Dame Victoria Sharp P and Chamberlain J thought-about whether or not the reference to a ‘assembly’ in schedule 12 to the Native Authorities Act 1972 (Conferences and Proceedings of Native Authorities) may embrace a gathering carried out wholly or partly remotely. The courtroom determined it couldn’t. ‘The query for us,’ they remarked, ‘isn’t what “assembly” means within the summary, or in another context, however what it means within the specific statutory context of schedule 12 to the 1972 act’, which wanted to be learn as a complete. Schedule 12 (amongst different issues) included obligations to carry the assembly ‘at such place, both inside or with out their space’ as a principal council, parish council or group council could direct. Consequently, ‘a “place inside or with out the world” is most naturally interpreted as a reference to a selected geographical location and wouldn’t naturally embody an internet location’. And: ‘Attending a gathering at a single specified geographical location would… ordinarily imply bodily going to that location.’ 

Furthermore: ‘The conferences offered for by schedule 12 to the 1972 act are an necessary a part of the mechanism of presidency of the nation’ and selections taken could have important authorized penalties for third events. It’s due to this fact necessary to have certainty about what constitutes attendance or presence at a gathering. The courtroom consequently thought-about that ‘a building in response to which conferences need to happen in particular person at a bodily location higher promotes certainty than one by which distant conferences are permissible in some however not different conditions and the dividing line isn’t spelled out’. Subsequently, ‘if we needed to construe the 1972 act purely on the premise of what was supposed in 1972, we’d learn “assembly” as referring to an in-person assembly going down at a selected geographical location and “attend” and “current” as connoting bodily attendance or presence at that location’.

Nevertheless, do related concerns apply to native authority licensing hearings? For the reason that Licensing Act 2003, native authorities have been the licensing authorities for regulation of the sale and provide of alcohol, the availability of regulated leisure and the availability of late-night refreshment. On hearings, by part 9(3) of the 2003 act, however topic to related laws, ‘every licensing committee could regulate its personal process and that of its sub-committees’. Regulation 4(1) of the Licensing Act 2003 (Hearings) Rules 2005 (SI 2005/44) (the Hearings Rules) requires an authority in England to rearrange for the date, time and place at which a listening to is to be held. The time period ‘place’ isn’t outlined. Regulation 21 of the Hearings Rules offers, topic to those laws that ‘the authority shall decide the process to be adopted on the listening to’. And by part 101(15) of the Native Authorities Act 1972 (preparations for the discharge of capabilities by native authorities): ‘Nothing on this part applies in relation to any perform underneath the Licensing Act 2003 of a licensing authority.’

On 11 July 2024, Chamberlain J within the Administrative Court docket in Stroll Protected Safety Ltd v Lewisham London Borough Council [2024] EWHC 1787 (Admin) offered helpful readability on the distant listening to challenge. This was an attraction by case elevating a pure query of regulation, specifically, is it lawful for a licensing listening to earlier than an area authority licensing committee to be held remotely? As Chamberlain J indicated, the purpose is of vast significance as a result of many native authorities routinely conduct all or most licensing hearings remotely. And the legality of this apply has not beforehand been thought-about by the Excessive Court docket.

Within the circumstances, Chamberlain J determined that underneath the 2003 act and the Hearings Rules, licensing committees in England could maintain licensing hearings remotely. When construing secondary laws, the courtroom’s process is to find out ‘the intention moderately to be attributed to the particular person making the instrument in respect of the phrases used’. There have been due to this fact 5 factors related to the correct interpretation of the licensing provisions in England and collectively: ‘These factors favour a building in response to which distant hearings are permissible in precept’. In headline abstract, these had been as follows:

1.    Shorn of its context, the time period ‘listening to’ may be utilized each to an in-person listening to and to a distant listening to. For (following Hertfordshire), the duty of the courtroom is to interpret the time period in its correct legislative context.

2.    In contrast to within the 1972 act, the time period ‘place’ is neither outlined nor accompanied by phrases connoting a single geographical location. Consequently, an internet platform may correctly be described as a ‘place’.

3.    Licensing hearings are ruled by a regime which is statutorily distinct from provisions governing native authority conferences and in contrast to them are usually not correctly described ‘a part of the mechanism of presidency of the nation’.

4.    Each part 9(3) of the 2003 act and regulation 21 of the Hearings Rules replicate an intention to confer most procedural flexibility on licensing committees, topic to the laws. The query is due to this fact whether or not distant hearings are expressly prohibited. There is no such thing as a such clear indication.

5.    There may be nothing in any of the jurisprudence of the Strasbourg courtroom to counsel that distant hearings essentially give rise to a violation of any ECHR procedural rights. In the event that they accomplish that particularly circumstances, a licensing authority would want to contemplate various preparations. However there is no such thing as a suggestion that the distant hearings within the current case gave rise to any such unfairness. And the moment challenge was whether or not distant hearings are permitted in any respect.

Nicholas Dobson writes on native authorities, public regulation and governance