Remote licensing hearings

On 28 April 2021 (in R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1093 (Admin)) (Hertfordshire), Dame Victoria Sharp P and Chamberlain J considered whether the reference to a ‘meeting’ in schedule 12 to the Local Government Act 1972 (Meetings and Proceedings of Local Authorities) could include a meeting conducted wholly or partly remotely. The court decided it could not. ‘The question for us,’ they remarked, ‘is not what “meeting” means in the abstract, or in some other context, but what it means in the particular statutory context of schedule 12 to the 1972 act’, which needed to be read as a whole. Schedule 12 (among other things) included obligations to hold the meeting ‘at such place, either within or without their area’ as a principal council, parish council or community council may direct. Consequently, ‘a “place within or without the area” is most naturally interpreted as a reference to a particular geographical location and would not naturally encompass an online location’. And: ‘Attending a meeting at a single specified geographical location would… ordinarily mean physically going to that location.’ 

Moreover: ‘The meetings provided for by schedule 12 to the 1972 act are an important part of the mechanism of government of the country’ and decisions taken may have significant legal consequences for third parties. It is therefore important to have certainty about what constitutes attendance or presence at a meeting. The court consequently considered that ‘a construction according to which meetings have to take place in person at a physical location better promotes certainty than one in which remote meetings are permissible in some but not other situations and the dividing line is not spelled out’. Therefore, ‘if we had to construe the 1972 act purely on the basis of what was intended in 1972, we would read “meeting” as referring to an in-person meeting taking place at a particular geographical location and “attend” and “present” as connoting physical attendance or presence at that location’.

However, do similar considerations apply to local authority licensing hearings? Since the Licensing Act 2003, local authorities have been the licensing authorities for regulation of the sale and supply of alcohol, the provision of regulated entertainment and the provision of late-night refreshment. On hearings, by section 9(3) of the 2003 act, but subject to relevant regulations, ‘each licensing committee may regulate its own procedure and that of its sub-committees’. Regulation 4(1) of the Licensing Act 2003 (Hearings) Regulations 2005 (SI 2005/44) (the Hearings Regulations) requires an authority in England to arrange for the date, time and place at which a hearing is to be held. The term ‘place’ is not defined. Regulation 21 of the Hearings Regulations provides, subject to these regulations that ‘the authority shall determine the procedure to be followed at the hearing’. And by section 101(15) of the Local Government Act 1972 (arrangements for the discharge of functions by local authorities): ‘Nothing in this section applies in relation to any function under the Licensing Act 2003 of a licensing authority.’

On 11 July 2024, Chamberlain J in the Administrative Court in Walk Safe Security Ltd v Lewisham London Borough Council [2024] EWHC 1787 (Admin) provided useful clarity on the remote hearing issue. This was an appeal by case raising a pure question of law, namely, is it lawful for a licensing hearing before a local authority licensing committee to be held remotely? As Chamberlain J indicated, the point is of wide significance because many local authorities routinely conduct all or most licensing hearings remotely. And the legality of this practice has not previously been considered by the High Court.

In the circumstances, Chamberlain J decided that under the 2003 act and the Hearings Regulations, licensing committees in England may hold licensing hearings remotely. When construing secondary legislation, the court’s task is to determine ‘the intention reasonably to be attributed to the person making the instrument in respect of the words used’. There were therefore five points relevant to the proper interpretation of the licensing provisions in England and collectively: ‘These points favour a construction according to which remote hearings are permissible in principle’. In headline summary, these were as follows:

1.    Shorn of its context, the term ‘hearing’ can be applied both to an in-person hearing and to a remote hearing. For (following Hertfordshire), the task of the court is to interpret the term in its proper legislative context.

2.    Unlike in the 1972 act, the term ‘place’ is neither defined nor accompanied by words connoting a single geographical location. Consequently, an online platform could properly be described as a ‘place’.

3.    Licensing hearings are governed by a regime which is statutorily distinct from provisions governing local authority meetings and unlike them are not properly described ‘part of the mechanism of government of the country’.

4.    Both section 9(3) of the 2003 act and regulation 21 of the Hearings Regulations reflect an intention to confer maximum procedural flexibility on licensing committees, subject to the regulations. The question is therefore whether remote hearings are expressly prohibited. There is no such clear indication.

5.    There is nothing in any of the jurisprudence of the Strasbourg court to suggest that remote hearings necessarily give rise to a violation of any ECHR procedural rights. If they do so in particular cases, a licensing authority would need to consider alternative arrangements. But there is no suggestion that the remote hearings in the present case gave rise to any such unfairness. And the instant issue was whether remote hearings are permitted at all.

Nicholas Dobson writes on local government, public law and governance