[2023] UKUT 132 (AAC)

licensing authority sub-committees are comprised of elected individuals who are answerable to their electors.

In Hope and Glory,which concerned the decision of a district judge (magistrates’ court) on appeal against the decision of a local authority’s licensing sub-committee, the Court of Appeal said:

“39…the issues are quite narrow. They are: (1) How much weight was the district judge entitled to give to the decision of the licensing authority? (2) More particularly, was he right to hold that he should only allow the appeal if satisfied that the decision of the licensing authority was wrong?...

41…the licensing function of a licensing authority is an administrative function. By contrast, the function of the district judge is a judicial function. The licensing authority has a duty, in accordance with the rule of law, to behave fairly in the decision-making procedure, but the decision itself is not a judicial or quasi-judicial act. It is the exercise of a power delegated by the people as a whole to decide what the public interest requires…

42.

Licensing decisions often involve weighing a variety of competing considerations…They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location…

43.

The statutory duty of the licensing authority to give reasons for its decision serves a number of purposes. It informs the public, who can make their views known to their elected representatives if they do not like the licensing sub-committee’s approach. It enables a party aggrieved by the decision to know why it has lost and to consider the prospects of a successful appeal. If an appeal is brought, it enables the magistrates’ court to know the reasons which led to the decision. The fuller and clearer the reasons, the more force they are likely to carry.

…45. Given all the variables, the proper conclusion to the first question can only be stated in very general terms. It is right in all cases that the magistrates’ court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.

…48. It is normal for an appellant to have the responsibility of persuading the court that it should reverse the order under appeal…We see no indication that Parliament intended to create an exception in the case of appeals under the 2003 Act.”

The Commissioner argues that Hope and Glory was confirmed and ‘generalised’ by the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. In Hesham Ali, which concerned deportation of foreign criminals, Lord Reed said:

“44 ....in considering the issue arising under article 8 in the light of its findings of fact, the appellate authority should give appropriate weight to the reasons relied on by the Secretary of State to justify the decision under appeal. In that connection, Lord Bingham [in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167] gave as examples a case where attention was paid to the Secretary of State’s judgment that the probability of deportation if a serious offence was committed had a general deterrent effect, and another case where weight was given to the Secretary of State’s judgment that the appellant posed a threat to public order. [Lord Bingham] continued:

‘[16] The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.’

45.

It may be helpful to say more about this point. Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal. That was made clear in Sagnata Investments Ltd v Norwich Corpn [1971] 2 QB 614, concerned with an appeal to quarter sessions against a licensing decision taken by a local authority. In a more recent licensing case, R (Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011] PTSR 868, para 45...”.

According to Mr Coppel’s skeleton argument for the Appellant, “the enormity of [the Tribunal’s Hope and Glory] reasoning cannot be overstated”. If taken to its natural conclusion, we would end up with a system in which (a) a regulator could, without being subject to any external scrutiny, impose a multi-million pound penalty payment; (b) payment of the penalty could only be avoided by appealing to a tribunal; (c) on the appeal, the Commissioner would, in relation to the infringement question, have to meet only an initial evidential burden and, if he did, the Appellant would have the burden of establishing that the MPN should not have been imposed whether at all or in amount. By its self-direction to pay “careful attention” to the Commissioner’s reasons, simply because Parliament entrusted it with decision-making responsibilities, the Tribunal tilted the playing field in favour of the regulator. That is clearly unfair and, in the words of the Appellant’s skeleton argument, “not something that any respectable legal system would countenance”.

The Appellant argues that the Commissioner misreads both Hope and Glory and Hesham Ali.

Hope and Glory was concerned with licensing decisions, not imposition of penalties. Central to the Court of Appeal’s reasoning, argues the Appellant, was that a licensing system focusses on local needs and concerns. The licensing sub-committee of a local authority is best placed to make, and be accountable for, decisions about local matters. This is why the Court, at [41], described the licensing decision as involving “the exercise of a power delegated by the people as a whole to decide what the public interest requires”, and contrasted it with a judicial or quasi-judicial act. It was this analysis led the Court to make its remarks, at [48], concerning an appellant’s burden of persuasion.

Regarding Hesham Ali, the deportation of ‘foreign criminals’ is not, argued Mr Coppel at the hearing, a promising start for the proposition that the Supreme Court’s decision ‘generalised’ Hope and Glory. Further distinguishing contextual factors were that, on appeal, deportation decisions were scrutinised by a tribunal that carried out a full merits review and cases frequently involved claims that Article 8 of the European Convention on Human Rights prevented deportation. The Appellant submits that ‘this point’, in Hesham Ali, at [45], meant issues arising under Article 8 and, accordingly, the Supreme Court applied, or ‘generalised’, Hope and Glory only to that limited extent. That reading is supported by the reference, at [45], to the Secretary of State’s decision-making ‘answerability’ in which the Court drew, even if impliedly, an analogy with the elected licensing decision makers in Hope and Glory. There is no principled basis upon which either decision could be applied to proceedings on an appeal against a MPN and the present Tribunal’s misreading of the case law meant that it improperly deferred to the Commissioner’s MPN decision and reasons. The Upper Tribunal cannot be confident that, had the Tribunal not misunderstood the authorities, it would have reached the same conclusion.

The Commissioner argues that the Appellant’s attempt to confine the application of Hope and Glory is a ‘hopeless exercise’. The Court of Appeal’s reference, at [45], to ‘an appeal court or tribunal’ can only be sensibly read as part of a proposition of law of general application. The ‘administrative functions’ referred to in Hope and Glory, at [41], are analogous to the function of imposing an MPN. Hope and Glory is not limited in its application to decisions given by bodies comprised of publicly elected individuals. The ‘highest authority’ (Hope and Glory, as approved by the Supreme Court in Hesham Ali) prevents a Tribunal from disregarding the decision under appeal. It instead requires careful attention to be paid to the decision but the actual weight to be given to the decision is such as the Tribunal considers appropriate. The Appellant argues that this would necessarily involve giving great weight to the Commissioner’s decision and, as Mr Coppel’s skeleton argument puts it, “every public law practitioner knows that the weight that a decision-maker gives to a relevant factor is nigh on impossible to impugn on appeal”. The Commissioner disagrees. ‘Due weight’ does not necessarily contemplate great weight being given to the Commissioner’s decision. As Mr Lockley put it at the hearing, if the Commissioner were to issue a ‘wholly rotten’ decision, the Tribunal could and should give it no weight at all.

If there were any doubt as to the generality of Hope and Glory, the Commissioner argues that it was dispelled by the unanimous decision in Hesham Ali which approved the Court of Appeal’s approach in terms that generalised its application or, at least, in terms applicable to MPN proceedings. At [44], Lord Reed expressed himself using general language, and the same applies to the cited words of Lord Bingham in Huang. The language used by Lord Reed, at [45], clearly sets out a proposition of general application (“where an appellate court or tribunal has to reach its own decision”). The ‘administrative functions’ referred to in Hope and Glory, at [41], are analogous to the function of imposing an MPN and [42] cannot sensibly be read as limited to functions exercised by bodies comprised of publicly elected individuals. The common thread is an administrative decision that imposes a significant disbenefit and carries a right of appeal to a tribunal.

The Commissioner also argues that the Appellant mischaracterises the nature of the legal principle expounded in Hope and Glory, treating it as an injunction to give significant weight, or pay deference, to a regulator’s decision when the Court of Appeal said no such thing. The Court made the uncontentious point, at [44], that ‘appropriate weight’ should be given to the decision under challenge. Moreover, notably absent from the Appellant’s submissions is any specific example of undue deference having been given by the present Tribunal to the Commissioner’s decision or reasons. The Tribunal’s reference to ‘careful attention’ is unobjectionable; it is obvious that careful attention ought to be given to the decision under appeal. In any event, it cannot be argued that the Tribunal simply deferred to the Commissioner not least because it gave no weight to the Commissioner’s findings as to the number of documents seized by the MHRA. At the hearing, Mr Coppel argued that a requirement for a tribunal to give ‘appropriate’ weight to a regulator’s decision was objectionable in principle because it effectively immunised the tribunal’s decision from challenge on appeal.

At the hearing, Mr Coppell, argued that Hope and Glory was also distinguishable because involved conferral of a benefit. I asked him to explain why since it involved attaching conditions to – placing restrictions on – an existing licence and he submitted that Hope and Glory involved a regulatory act that was ‘not a positive disbenefit’. By contrast, a MPN is the imposition of a positive dis-benefit by an unelected regulatory body.