Open justice, agenda papers, and the Licensing Act 2003

This article first appeared in the Journal of Licensing for March 2020.

What details should licensing authorities post on their websites about forthcoming hearings to determine applications under the Licensing Act 2003?

Many local authorities will tell you that this is governed by under Part VA of the Local Government Act 1972, which relates to “Access to Meetings and Documents of Certain Authorities, Committees and Sub-Committees”, and that the answer is that the 1972 Act requires the meeting agenda and report to be placed on the local authority website. Quite often you will hear that agendas and reports need to be on the website “five clear days” before the meeting to comply with the 1972 Act.

In this article, I am going to tell you that those local authorities are wrong: one of the many quirks and features of the licensing regime under the 2003 Act is that the provisions in Part VA of the 1972 Act do not apply. I will explain why this is the case, and I go on to look at what local authorities should be doing if the 1972 Act does not govern the procedure. The answer may well be that they should be pretty much act as if the 1972 Act applied: but the (circuitous) route by which we get to that answer throws up some features of the 2003 Act regime and the wider principles of the newly developing concept of “open justice”, as well as a refresher course on the Openness Regulations, all of which may be of some general interest to local authorities and licensing practitioners.

Licensing Authorities: some basics

S.3 of the 2003 Act makes various species of local authorities licensing authorities for the areas for which they act. As licensing authority, each must carry out its functions under the 2003 Act (“licensing functions”) with a view to promoting the licensing objectives: s.4(1). Each must also have regard to its licensing statement and the s 182 guidance: s.4(3).

A licensing authority must establish a licensing committee of at least ten, but not more than fifteen, members of the authority: s.6(1). Subject to certain exclusions (set out in s.7(2)), all matters relating to the discharge by a licensing authority of its licensing functions are, by virtue of s.7, referred to its licensing committee and, accordingly, that committee must discharge those functions on behalf of the authority: s.7(1).

A licensing committee may establish one or more sub-committees consisting of three members of the committee: s 9(1).

S.9(2) provides that regulations may make provision about:

(a) the proceedings of licensing committees and their sub-committees (including provision about the validity of proceedings and the quorum for meetings),

(b) public access to the meetings of those committees and sub-committees,

(c) the publicity to be given to those meetings,

(d) the agendas and records to be produced in respect of those meetings, and

(e) public access to such agendas and records and other information about those meetings.

S 9(3) provides that “subject to any such regulations, each licensing committee may regulate its own procedure and that of its sub-committees”.

S.183(1) provides that regulations may prescribe the procedure to be followed in relation to a hearing held by a licensing authority under the Act, and, in particular, may - amongst other things - require a licensing authority to give notice of hearings to such persons as may be prescribed.

The Licensing Act 2003 (Hearings) Regulations 2005/44 (as amended) (“the Hearings Regulations”) have been made under s 9(2).

The Hearings Regulations

Regulation 6(1) of the Hearings Regulations requires a licensing authority to give a notice stating the date on which and time and place at which the hearing is to be held (the “notice of hearing”) to specified persons. By way of example, notice of hearing under s 18(3)(a) (determination of an application for a premises licence) is to be given to the applicant and persons who have made relevant representations.

By virtue of regulation 7, the notice of hearing must be accompanied by specified information (regarding the party’s rights under certain of the Hearings Regulations, the consequences of non-attendance or non-representation, the procedure to be followed at the hearing and any particular points on which the authority considers that it will want clarification at the hearing from a party) together with specified documents. By way of example, notice of hearing under s 18(3)(a) when given to the applicant must be accompanied by copies of the relevant representations.

Regulation 14 provides that, subject to a public interest exception, the hearing shall take place in public.

Regulation 30 requires an authority to take a record of the hearing and to keep it for 6 years.

But there is nothing in the Hearings Regulations that deals with the matters in s.9(2)(c), (d) (insofar as it relates to agendas) and (e). So, the Hearings Regulations are silent about:

(c) the publicity to be given to those meetings,

(d) the agendas to be produced in respect of those meetings, and

(e) public access to such agendas and records and other information about those meetings.

Premises Licences Regulations

To take an application for a new premises licence as an example, s.17 of the 2003 Act sets out the application procedure. S.17(5) provides that the Secretary of State must by regulations require both the applicant and the licensing authority to advertise applications. The relevant regulations are the Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005/42 (“the Premises Licences Regulations”).

So far, so open. But there is nothing in the Premises Licences Regulations about what dissemination should be made of agendas and records and other information about hearings.

Local Government Act 1972

Part VA of the Local Government Act 1972 makes provision for access to meetings and documents of certain authorities, committees and sub-committees.

Ss.100A-100D of the 1972 Act relate to the meetings of principal councils.

S.100E(1) then applies ss.100A-100D “to a committee or sub-committee of a principal council as they apply in relation to a principal council”. S.100E(3) provides:

Any reference in this Part to a committee or sub-committee of a principal council is a reference to—

(a) a committee which is constituted under an enactment specified in section 101(9) below or which is appointed by one or more principal councils under section 102 below; or

(b) [not relevant]

(bba) [not relevant]

(bbb) [not relevant]

(bb) [not relevant]; or

(c) a sub-committee appointed or established under any enactment by one or more committees falling within paragraphs (a) to (bb) above.

For a licensing committee to fall within s.100E, it has to be a committee falling within s.100E(3)(a) or a sub-committee of such a committee (so as to fall within s.100E(3)(c)). Spoiler alert: it isn’t.

Firstly, s.101(9) has been repealed and so is of no import. It has never specified the 2003 Act. We can stop worrying about it.

Secondly, s.102(1) provides, inter alia, that for the purpose of discharging any functions in pursuance of arrangements made under s. 101, a local authority may appoint a committee of the authority and any such authority may appoint one or more subcommittees. So we have to look at s. 101. S..101(1)(a) provides that “subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions” by a committee, a sub-committee or an officer of the authority. If this looks promising, well it isn’t, because s. 101(15) provides “Nothing in this section applies in relation to any function under the Licensing Act 2003 of a licensing authority (within the meaning of that Act)”.

So, as a licensing committee is not appointed by a principal council under s. 102 of the 1972 Act, because of the exception in s. 101(15). Instead it is established under s.6 of the 2003 Act. Part VA of the Local Government Act 1972 Act does not apply to the proceedings of a licensing committee or any sub-committee thereof.

Consequences of Part VA of the 1972 Act not applying to licensing committees

Help! Where does this leave local authorities?

The fall-back position within the 2003 Act is found in s. 9(3): subject to any provision in regulations made under s. 9(2), the licensing committee may regulate its own procedure and that of its sub-committees.

I have already observed that the Hearing Regulations are silent as to the matters in s 9(2)(c), (d) (insofar as it relates to agendas) and (e). So these matters are matters for the licensing committee. By way of reminder they are:

• the publicity to be given to meetings,

• the agendas to be produced in respect of meetings, and

• public access to such agendas and records and other information about those meetings.

So, a licensing committee can set its own rules. Of course, it does not have carte blanche in in terms of regulating its own procedure and those of its sub-committees. Local authorities do not operate in a vacuum. I now go on to consider what statutory provisions, guidance and other duties may affect or otherwise influence how the procedure should be regulated.

Licensing objectives

As already stated, by virtue of s 4(1) of the 2003 Act, a licensing authority must carry out its functions under the Act with a view to promoting the licensing objectives.

When a licensing committee sets its own and its sub-committees’ procedures under s 9(3), that is a licensing function which therefore must be carried out with a view to promoting the licensing objectives.

Giving publicity to its meetings, preparing agendas for those meetings and providing public access to agendas, records and other information are all matters which could impact on the licensing objectives.

As a general principle, one would think that the more publicity given to meetings, the more public access given to papers and the more comprehensive agendas are, the more likely it is that the licensing objectives will be promoted. Exposing full papers to public scrutiny would be likely to encourage public participation in hearings. For instance, it might be likely that if a representation is mounted on a completely false basis, it is more likely that this would be drawn to the committee’s attention if the wide public has been able to see it.

The input of the community in licensing decisions is an important consideration: see Toulson L.J. (as he then was) in R. (Hope and Glory Public House Limited) v. City of Westminster Magistrates’ Court [2011] EWCA Civ 31 at [41-43]:

41. As Mr Matthias rightly submitted, 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. (See the judgment of Lord Hoffmann in Alconbury at para 74.)

42. Licensing decisions often involve weighing a variety of competing considerations: the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand, the effect on law and order, the impact on the lives of those who live and work in the vicinity, and so on. Sometimes a licensing decision may involve narrower questions, such as whether noise, noxious smells or litter coming from premises amount to a public nuisance. Although such questions are in a sense questions of fact, they are not questions of the “heads or tails” variety. They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location. In any case, deciding what (if any) conditions should be attached to a licence as necessary and proportionate to the promotion of the statutory licensing objectives is essentially a matter of judgment rather than a matter of pure fact.

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.

S 182 guidance

By virtue of s 4(3) of the Act, in carrying out its licensing functions, a licensing authority must have regard to any guidance issued by the Secretary of State under s 182 of the Act.

Paragraph 1.5 of the s 182 guidance issued in April 2018 points out that the 2003 Act, in addition seeking to promote the licensing objectives, “also supports a number of other key aims and purposes” which are “vitally important and should be principal aims for everyone involved in licensing work”. They include:

encouraging greater community involvement in licensing decisions and giving local residents the opportunity to have their say regarding licensing decisions that may affect them.

Legislative and Regulatory Reform Act 2006

S 21 of the Legislative and Regulatory Reform Act 2006 provides that, subject to any other requirement, a person exercising a regulatory function to which the section applies must have regard to specified principles including the principle that regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent.

By virtue of the Legislative and Regulatory Reform (Regulatory Functions) Order 2007/3544, the s 21 requirement applies to persons exercising functions under the 2003 Act.

S 23 of the 2006 Act provides that “in determining any general policy or principles by reference to which the person exercises the function”, a regulator should have regard to the Minister’s Code of Practice. The relevant code is the Regulator’s Code of April 2014. Whilst the thrust of the Regulators’ Code deals with the relationship between the regulator and the regulated, of relevance is the 6th general principle: “Regulators should ensure that their approach to their regulatory activities is transparent”.

Open justice

In R (Guardian News and Media Limited) v. Westminster Magistrates’ Court [2013] Q.B. 618, (CA) Toulson L.J. (for it was he), said (at [1]):

Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes—who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

That case concerned an application by the Guardian newspaper for copies of documents referred to in open court during extradition proceedings. The Court of Appeal held [70] that “the requirements of open justice apply in all tribunals exercising the judicial power of the state”. Here, the Guardian wished to be able to refer to the documents for the purpose of stimulating informed debate about the way the justice system dealt with suspected international corruption and the system for extradition of British subjects to the USA. The Court held that unless some strong contrary argument could be made, the courts should assist rather than impede such exercise [77]. The debate was a matter of public interest about which it was right that the public should be informed; and the public was more likely to be engaged by an article which focused on the facts of a particular case than by a more general or abstract discussion.

The application of open justice to “all tribunals exercising the judicial power of the state” was then extended in Kennedy v. Charity Commission [2015] A.C. 455 to non-judicial bodies carrying out a statutory inquiry. The definition of a statutory inquiry includes, I shall suggest, a licensing hearing.

Kennedy concerned a journalist’s request of the Charity Commission for disclosure of information relating to statutory inquiries carried out into the affairs of a particular charity (founded by one George Galloway MP). The journalist made a request under s 1 of the Freedom of Information Act 2000 (“FOIA”). The Commission relied on the exemption in s 32(2) which provides:

Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration

An “inquiry” for these purposes means “any inquiry or hearing held under any provision contained in, or made under, an enactment”: s 32(4) FOIA.

Pausing there, it would seem that a hearing before a licensing sub-committee under the 2003 Act would be an “inquiry” for these purposes. It is a hearing. It is held under a provision contained in the 2003 Act.

The majority of the Supreme Court held that the Commission was entitled to rely on the s 32(4) FOIA exemption in relation to the FOI request.

The Court went on to consider what the position would have been had Mr Kennedy had made his request, not under FOIA, but under the Charities Act 1993 construed in the light of common law principles and article 10 of the European Convention on Human Rights (if and insofar as article 10 may be engaged).

The majority held that the effect of the principle of open justice as described in R (Guardian News and Media Limited) v. Westminster Magistrates’ Court applied not just to judicial bodies, but to public bodies carrying out a statutory inquiry (see Lord Toulson (as he had become) at [108]). So where there was a legitimate public interest in the conduct of inquiries by such bodies (as there was in the case of the Charity Commission’s inquiries into the proper function and regulation of charities), in the context of the relevant legislation (which should be the starting point - see e.g. Lord Toulson at [125-126]), the body should accede in the public interest to a request for disclosure, except so far as the public interest in disclosure is demonstrably outweighed by any countervailing arguments (see Lord Mance at [49]).

The question of what to disclose (in the absence of statutory provision) is for the statutory body (Lord Toulson at [128]). There is no need for a specific statutory provision requiring disclosure.

In Kennedy, the Charities Act 1993 identified the Commission’s objectives, functions and duties in terms which made clear the importance of the public interest in the operations of both the Commission and the charities which it regulated. The 1st objective given to the Commission was “to increase public trust and confidence in charities”, while the 5th and last was “to enhance the accountability of charities” to, inter alia, the general public. The Commission’s general functions included “obtaining, evaluating and disseminating information in connection with the performance of any of its functions or meeting any of its objectives”. As its 1st general duty, “the Commission must, in performing its functions, act in a way (a) which is compatible with its objectives, and (b) which it considers most appropriate for the purpose of meeting those objectives”; and, as to its fourth such duty, “in performing its functions, [it] must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed)”.

Pausing there, the matters included in “best regulatory practice” in the Charities Act 1993 are identical to the principles to which a local authority must have regard in carrying out its licensing functions by virtue of s 21 of the Legislative and Regulatory Reform Act 2006.

Significant weight was placed by the majority of the Supreme Court in Kennedy on the duty of the Commission to perform its functions with regard to the principle that its activities should be transparent (see e.g. Lord Mance at [51, 55 and 92], and Lord Toulson at [132]).

In asserting that the principle of openness should be extended to inquiries within the meaning of s 32 FOIA, Lord Toulson said [122] that “[a]lthough such inquiries and hearings may vary considerably in nature and scope, it is fair to described the conduct of them as a quasi-judicial function”. He went on to suggest that the principle of open justice applying to judicial functions applied equally to quasi-judicial functions [124].

This categorisation of inquiries (within the s.32 FOIA definition) as “quasi-judicial” was criticised by Lord Carnwath in his dissenting judgment [236], who said that Lord Toulson “gives no further authority or explanation for the use of that somewhat imprecise and outmoded expression”. Indeed, support for Lord Carnwath’s dissent can be found in the judgment of Toulson L.J. (as he then was) in Hope and Glory (CA) at [41].

Whilst Lord Carnwath’s dissent and Lord Toulson’s conflicting earlier judgment might reveal a flaw in the majority’s reasoning, the characterisation of a licensing committee as “exercising a power delegated by the people as a whole to decide what the public interest requires” hardly militates against disclosure. And the dissenting speeches (Lord Carnwarth and Lord Wilson) were not in favour of Mr Kennedy being denied access to the documents - on the contrary, they reached that he should have the access to the documents by the requested route of a FOI request (s 32 FOIA to be read down to give effect to article 10 ECHR).

Despite his dissent in Kennedy, in R (CPRE Kent) v. Dover District Council [2018] 1 W.L.R. 108, Lord Carnwath gave a judgment of the Supreme Court where he stated, obiter, that the principle of open justice applied to the decision making process of local planning authorities: [55]:

Doody [a case that concerned the power of the Home Secretary to fix a minimum period before life prisoner would be considered for parole] concerned fairness as between the state and an individual citizen. The same principle is relevant also to planning decisions, the legality of which may be of legitimate interest to a much wider range of parties, private and public: see Walton v Scottish Ministers [2013] PTSR 51, paras 152–153 per Lord Hope of Craighead DPSC. Here a further common law principle is in play. Lord Bridge saw the statutory duty to give reasons as the analogue of the common law principle that “justice should not only be done, but also be seen to be done” (see para 25 above). That principle of open justice or transparency extends as much to statutory inquiries and procedures as it does to the courts: see Kennedy at para 47 per Lord Mance JSC, para 127 per Lord Toulson JSC. As applied to the environment it also underpins the Aarhus Convention, and the relevant parts of the EA Directive. In this respect the common law, and European law and practice, march together (compare Kennedy para 46 per Lord Mance JSC). In the application of the principle to planning decisions, I see no reason to distinguish between a ministerial inquiry, and the less formal, but equally public, decision-making process of a local planning authority such as in this case.

In R (DSD, MBV, Mayor of London, News Group Newspapers Limited) v. Parole Board of England and Wales [2018] EWHC 694 (Admin) (the judicial review of the decision to parole the “Black Cab Rapist” John Worboys), the Divisional Court agreed with Counsel for News Group that “the open justice principle is multifaceted and its application is not ‘all or nothing’”. Reliance was placed on Lord Toulson’s explanation in Kennedy (at [115]) that:

The fundamental reasons for the open justice principle are of general application to any such body [viz. a body exercising the power of the state], although its practical operation may vary according to the nature of the work of a particular judicial body.

The Hearing Regulations make provision for the hearing to be in public (subject to public interest exemptions) and for a record to be kept of the hearing. Anyone can make representations in relation to licensing applications (subject to restrictions on frivolous or vexatious representations). Anyone who has made a representation may attend and make representations at a hearing (regulations 15 and 16 of the Hearings Regulations). Public engagement in the process is positively encouraged by the Act, by the s. 182 guidance (and by the very nature of the proceeding (see Hope and Glory). I have ventured to suggest that a hearing under the Act is an inquiry for the purposes of s. 32 FOIA, thus bringing it within the category of “inquiries” that the majority of the Supreme Court considered were subject to the open justice principle. Furthermore, as with the Charity Commission, a licensing authority is subject to a statutory duty to act with transparency.

In my view, the principles of open justice apply to hearings before licensing sub-committees.

If I am right about that, then sub-committees should accede to requests for disclosure unless the public interest in so doing is demonstrably outweighed by any countervailing arguments. And here, s. 9(2) of the Act contemplates “public access” to such papers. I think this is wider than “watchdog” access.

Openness Regulations

The Openness of Local Government Bodies Regulations 2014 have been made under s. 40 of the Local Audit and Accountability Act 2014 (“the Openness Regulations”).

Regulation 8 of the Openness Regulations provides:

(1) The written record, together with any background papers, must as soon as reasonably practicable after the record is made, be made available for inspection by members of the public—

(a) at all reasonable hours, at the offices of the relevant local government body;

(b) on the website of the relevant local government body, if it has one; and,

(c) by such other means that the relevant local government body considers appropriate.

(2) On request and on receipt of payment of postage, copying or other necessary charge for transmission, the relevant local government body must provide to the person who has made the request and paid the appropriate charges—

(a) a copy of the written record;

(b) a copy of any background papers.

(3) The written record must be retained by the relevant local government body and made available for inspection by the public for a period of six years beginning with the date on which the decision, to which the record relates, was made.

(4) Any background papers must be retained by the relevant local government body and made available for inspection by the public for a period of four years beginning with the date on which the decision, to which the background papers relate, was made.

(5) In this regulation “written record” means the record required to be made by regulation 7(1) or the record referred to in regulation 7(4), as the case may be.

There is an exception for confidential information in regulation 9. A “relevant local government body” includes local authorities.

The record required to be made by regulation 7(1) is a record of any decision “if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer…”.

“Background papers” means those documents other than published works that relate to the subject matter of the decision or, as the case may be, part of the decision and in the opinion of the proper officer disclose any facts or matters on which the decision or an important part of the decision is based and were relied on to a material extent in making the decision: regulation 6.

This is a historical requirement to publish documents after decisions are taken. It only applies to delegated decisions. The Openness Regulations therefore go to context as to what should be disseminated prior to a public hearing before a committee.

What should licensing authorities do?

If (as I contend) Part VA of the Local Government Act 1972 does not govern prior access to agenda and reports for hearings under the 2003 Act, it follows that, strictly speaking, licensing authorities should consider the fall-back position, which is that subject to any provision in regulations made under s. 9(2), the licensing committee may regulate its own procedure and that of its sub-committees. As seen, the Hearings Regulations say nothing about prior dissemination of agenda papers.

What should a licensing authority do in reviewing and setting its own procedure?

I think regard needs to be had to the following matters:

• the licensing objectives: whether placing the full set of papers on the website (subject to any necessary redactions or justified exclusions) promote the licensing objectives;

• the s. 182 guidance and in particular the key aims and purposes of the legislation identified in §1.5;

• the requirements of s. 21 of the Legislative and Regulatory Reform 2006 Act and in particular the need when carrying out licensing functions to have regard to the principle that regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent (with particular regard to the principles of transparency and accountability);

• in formulating its own procedure, the need to have regard to the Regulator’s Code, and the 6th general principle therein, namely that regulators should ensure that their approach to regulatory activities is transparent;

• the common law principle of open justice, which in my view applies to hearings before licensing sub-committees, and how best to discharge the duties thereby arising on it;

• articles 10 and 6 of the ECHR, if they add anything to the common law principle of open justice (which the Supreme Court has doubted) (See Kennedy, paras [89] – [91], and [147]).

• the fact where delegated decisions are made, background papers have to be disclosed by virtue of the Openness Regulations - it would seem odd if the disclosure obligation was wider for delegated decisions than for contested hearings;

• the public sector equality duty under s.149 of the Equalities Act 2010;

• the duty imposed by s.17 of the Crime and Disorder Act 1998.

In my view, one way of setting a procedure which had regard to those matters would be for matters to be conducted as if Part VA of the 1972 Act applied to hearings before the licensing sub-committee (subject to the express refinements in the Act and in the Hearings Regulations).

This has the advantages that rather than deal with requests for access on a case by case basis, the presumption will simply be that documents are placed on the website unless the public interest in doing so is outweighed by the public interest in not doing so in any case. It is a ready-made code with which local authorities and their officers will be familiar.

So, business as usual? Well, the applicability of the open justice principle to statutory hearings raises some interesting questions for access to licensing documentation generally. There may be scope for access to papers traditionally thought to be confidential (so agenda and reports relating to hackney carriage and private hire applications, for instance). Indeed in some controversial applications involving App-based operators, local authorities have shown more willingness than in the past to be transparent about the decision-making process: whether this was by instinct or by reference to the developing jurisprudence, it is a sensible course to take.