LOCAL GOVERNMENT: LEISURE AND LICENSING
COURT OF APPEAL LORD GREENE MR, SOMERVELL LJ AND SINGLETON J 7, 10 NOVEMBER 1947
Theatres and Places of Entertainment – Cinematograph – Sunday performance – Permission – Condition – Prohibition of admission of child under 15 – Sunday Entertainments Act, 1932 (c 51), s 1(1).
It is not ultra vires a licensing authority when allowing, under s 1(1) of the Sunday Entertainments Act, 1932, a cinematograph theatre in their area to be opened on Sundays, to take into consideration matters concerning the well-being and the physical and moral health of children and to impose a condition that children under the age of 15 years, whether accompanied by an adult or not, shall be excluded from the theatre.
The court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account matters which it ought to take into account. Once that question␣680␣ is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, and in such a case the court can interfere. The power of a court, however, to interfere in any case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority has contravened the law by acting in excess of the powers which Parliament has confided in it.
Harman v Butt ([1944] 1 All ER 558) applied. Decision of Henn Collins J ([1947] 1 All ER 498) affirmed.
Notes
As to Sunday opening of cinemas, see Halsbury Hailsham Edn, Vol 32, pp 75–76, paras 96, 97; and for cases, see Digest Vol 42, pp 920–922, Nos 160–175.
Cases referred to in judgments
Harman v Butt [1944] 1 All ER 558, [1944] KB 491, 114 LJKB 99, 170 LT 355, 108 JP 229, Digest Supp. R v Burnley J J, Ex p Longmore (1916), 85 LJKB 1565, 115 LT 525, 80 JP 382, 42 Digest 921, 161. Ellis v Dubowski [1921] 3 KB 621, 91 LJKB 89, 126 LT 91, 85 JP 230, 42 Digest 921, 162. Roberts v Hopwood [1925] AC 578, 94 LJKB 542, 133 LT 289, 89 JP 105, revsg, SC sub nom R v Roberts, Ex p Scurr [1924] 2 KB 695, 33 Digest 20, 83. Theatre de Luxe (Halifax) Ltd v Gledhill [1915] 2 KB 49, 112 LT 519, 79 JP 238, 24 Cox CC 614, sub nom Halifax Theatre de Luxe Ltd v Gledhill 84 LJKB
649, 42 Digest 920, 160.
Appeal
Appeal by the plaintiffs, proprietors and licensees of a cinematograph theatre, from a refusal of Henn Collins J (reported [1947] 1 All ER 498), to grant a declaration that a condition attached to a permission for Sunday performances granted by the defendants, the licensing authority, was ultra vires. The appeal was dismissed. The facts appear in the judgment of Lord Greene MR.
Gallop KC and Sidney H Lamb for the plaintiffs. Fitzgerald KC and Vernon Gattie for the defendants.
10 November 1947. The following judgments were delivered.
LORD GREENE MR. In the action out of which this appeal arises the plaintiffs, who are the proprietors of a cinematograph theatre in Wednesbury, sought to obtain from the court a declaration that a certain condition imposed by the defendants, Wednesbury Corporation, on the grant of permission for Sunday performances to be held in that cinema was ultra vires. The action was dismissed by Henn Collins J and, in my opinion, his decision was clearly right.All England Law Reports 1936 – books on screenTM All ER 1947 Volume 2 Preamble
The powers and duties of the local authority are to be found in the Sunday Entertainments Act, 1932. That Act legalised the opening of cinemas on Sundays, subject to certain specified conditions and such conditions as the licensing authority think fit to impose. The licensing authority is that set up under the Cinematograph Act, 1909. In this case it is Wednesbury Corporation. Before the Act of 1932, the opening of cinematograph theatres on Sundays was illegal. The position under the Act is stated conveniently by Atkinson J in Harman v Butt, where he says ([1944] KB 493):
‘It is apparent that there are at least three totally different occasions on which licensing justices may be called on to exercise their discretion to issue a licence and to determine on what conditions the licence shall be issued. The application may be under the Cinematograph Act, 1909, relating to six days of the week, excluding Sundays. It may be one relating solely to Sundays under the Sunday Entertainments Act, 1932, where in the case of a borough the majority of the local government electors have expressed a desire for Sunday performances. Thirdly, it may be one where the local government electors have expressed no such wish, but where the application is made for the benefit of those members of the forces who are stationed in the neighbourhood for the time being.’
During the war, under a Defence Regulation, the commanding officer of forces stationed in the neighbourhood had power to make a representation to the licensing authority, and in Harman v Butt, that had taken place.
␣ 681␣ The words in question in the present case are to be found in s 1 of the Act of 1932, which provides:
‘(1) The authority having power, in any area to which this section extends, to grant licences under the Cinematograph Act, 1909, may, notwithstanding anything in any enactment relating to Sunday observance, allow places in that area licensed under the said Act to be opened and used on Sundays for the purpose of cinematograph entertainments, subject to such conditions as the authority think fit to impose … ’
That power to impose conditions is expressed in quite general terms, and in the present case the defendants imposed the following condition in their licence: ‘No children under the age of 15 years shall be admitted to any entertainment, whether accompanied by an adult or not.’
Counsel for the plaintiffs argued that it was not competent to the Wednesbury Corporation to impose any such condition, and he said that, if they were entitled to impose a condition prohibiting the admission of children, they should have limited it to cases where the children were not accompanied by their parents or a guardian or some adult. His argument was that the imposition of that condition was unreasonable, and that, in consequence, it was ultra vires the corporation.
The contention of the authority, in my opinion, is based on a misconception of the effect of the Act in granting this discretionary power to local authorities. The courts must always remember, first, that the Act deals, not with a judicial act, but with an executive act; secondly, that the conditions which, under the exercise of that executive act, may be imposed are in terms put within the discretion of the local authority without limitation; and thirdly, that the statute provides no appeal from the decision of the local authority. What, then, is the power of the courts? The courts can only interfere with an act of an executive authority if it be shown that the authority have contravened the law. It is for those who assert that the local authority have contravened the law to establish that proposition. On the face of it, a condition of this kind is perfectly lawful. It is not to be assumed prima facie that responsible bodies like local authorities will exceed their powers, and the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for the local authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a local authority, what purports to be an exercise of that discretion can only be challenged in the courts in a very limited class of case. It must always be remembered that the court is not a court of appeal. The law recognises certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law.
What, then, are those principles? They are perfectly well understood. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered relating to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty—those, of course, stand by themselves—unreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration. In the present case we have heard a great deal about the meaning of the word “unreasonable.” It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraselogy commonly used in relation to the exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. ␣ 682␣He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ, I think it was, gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all those things largely fall under one head.
In the present case, it is said by counsel for the plaintiffs that the authority acted unreasonably in imposing this condition. In the first place, it appears to me clear that the matter dealt with by this condition was one which a reasonable authority would be justified in considering when it was making up its mind what conditions should be attached to the grant of its permission. Nobody, at this time of day, can say that the well-being and the physical and moral health of children are not matters which a local authority, in exercising its powers, can properly have in mind when those questions are germane to what it has to consider. Counsel for the plaintiffs did not suggest that the authority were directing their minds to a purely extraneous and irrelevant matter, but he based his argument on the word “unreasonable,” which he treated as an independent ground for attacking the decision of the authority. Once, however, it is conceded, as it must be conceded, that the subject-matter of this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case, because, once that is granted, counsel must go so far as to say that the decision of the authority is wrong because it is unreasonable, and then he is really saying that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the whole argument entirely breaks down. It is perfectly clear that the local authority are entrusted by Parliment with the decision on a matter in which the knowledge and experience of the authority can best be trusted to be of value. The subject-matter with which the condition deals is one relevant for its consideration. It
All England Law Reports 1936 – books on screenTM All ER 1947 Volume 2 Preamble
has considered it and come to a decision on it. Theoretically it is true to say—and in practice it may operate in some cases—that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is right, but that would require overwhelming proof, and in this case the facts do not come anywhere near such a thing. Counsel in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense, not that it is what the court considers unreasonable, but that it is what the court considers is a decision that no reasonable body could have come to, which is a different thing altogether. The court may very well have different views from those of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse. All over the country, I have no doubt, on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority who are put in that position and, provided they act, as they have acted here, within the four corners of their jurisdiction, the court, in my opinion, cannot interfere.
The case, in my opinion, did not require reference to authority once the simple and well-known principles are understood on which alone a court can interfere with something prima facie within the powers of the executive authority, but reference has been made to a number of cases. I can deal quite shortly with them. Henn Collins J followed the decision of Atkinson J in Harman v Bett, where a condition of this character had been imposed, and I think the only difference between the two cases is that in Harman v Butt, the licence to open on Sundays originated in a representation by the commanding officer of forces stationed in the neighbourhood. Atkinson J ([1944] KB 499) said:
‘… I am satisfied that the defendants were entitled to consider matters relating ␣ 683␣ to the welfare, including the spiritual well-being, of the community and of any section of it, and I hold that this condition that no child under the age of sixteen should be admitted to this cinematograph theatre on Sunday is not ultra vires on the ground that it is not confined to the user of the premises by the licensee, but relates to the interest of a section of the community .’
That decision, in my opinion, is unassailable. R v Burnley J J, and, not dissimilar on one point, Ellis v Dubowski, were cases where the illegal element which the authority had imported into the conditions imposed consisted of a delegation of its powers to some outside body. It was not that the delegation was such as no reasonable person could have thought sensible, but it was outside their powers altogether to pass on to some outside body the discretion which the legislature had confided to them. Counsel for the plaintiffs relied also on Roberts v Hopwood, which was of a totally different class. There the district auditor had surcharged the members of a council who had made payments of a minimum wage of £4 a week to their lowest grade of workers. That sum had been fixed by the local authority, not by reference to any of the factors which go to determine a scale of wages, but by reference to some other principle altogether, and the substance of the decision was that, in fixing the £4 a week as wages, they had acted unreasonably. When the case is examined, the word “unreasonable” is found to be used rather in the sense that I mentioned a short while ago, namely, that, in fixing the £4, they had fixed it by reference to something which they ought not to have entertained and to the exclusion of those elements which they ought to have taken into consideration in fixing a sum which could fairly be called a wage. That is no authority to support the proposition that the court has got some sort of overriding power to decide what is reasonable and what is unreasonable.
An early case under the Cinematograph Act, 1909, much discussed before us, was Theatre de Luxe (Halifax) Ltd v Gledhill. That was a decision of a Divisional Court as to the legality of a condition imposed under the Act to the following effect:
‘Children under fourteen years of age shall not be allowed to enter into or be in the licensed premises after the hour of 9 p.m. unaccompanied by a parent or guardian. No child under the age of ten years shall be allowed in the licensed premises under any circumstances after 9 p.m.’
That case was heard by a Divisional Court of the King’s Bench Division consisting of Lush, Rowlatt and Atkin JJ. The majority, consisting of Lush and Rowlatt JJ held that the condition was ultra vires as there was no connection, as the head-note says ([1915] 2 KB 49):
‘… between the ground upon which the condition was imposed, namely, regard for the health and welfare of young children generally, and the subject-matter of the licence, namely, the use of the premises for the giving of cinematograph exhibitions.’
That case is one which I think I am right in saying has never been referred to with approval, but has often been referred to with disapproval, though it has never been expressly overruled. I myself take the view that the decision of the majority in that case puts too narrow a construction on the licensing power given by the Act in question there. Atkin J on the other hand, delivered a dissenting judgment in which he expressed the opinion that the power to impose conditions was nothing like so restricted as the majority had thought. Quoting again from the head-note, his opinion was (ibid):
‘… that the conditions must be (1) reasonable; (2) in respect of the use of the licensed premises; (3) in the public interest. Subject to that restriction there is no fetter upon the power of the licensing authority.’
If I may venture to express my own opinion about that, I think that Atkin J was right in considering that the restrictions on the power of imposing conditions were nothing like so broad as the majority thought, but I am not sure that his language might not be read in rather a different sense from that which I think he must have intended. I do not find in any of the language that he used any justification for thinking that it is for the court to decide the question of reasonableness rather than the local authority. I do not read him as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether ␣ 684␣ the condition imposed by the local authority is one which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose. Similarly, when he refers to the public interest, I do not read him as saying more than that the public interest is a proper and legitimate thing which the licensing authority ought to have in mind. He certainly does not suggest that the court is entitled to set up its view of the public interest against the view of the local authority. Once the local authority have properly taken into consideration a matter of public interest such as, in the present case, the moral and physical health of children, it seems to me there is nothing in what Atkin J says which suggests that a court could interfere with a decision because it took a different view of what was the public interest. It is obviously a subject on which different minds may have different views. I do not read him as doing any more than saying the local authority can and should take that matter into account in coming to their decision.
In the result, in my opinion, the appeal must be dismissed. I do not wish to repeat what I have said, but it might be useful to summarise once again the principle, which seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into
All England Law Reports 1936 – books on screenTM All ER 1947 Volume 2 Preamble
account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it. The appeal must be dismissed with costs.
SOMERVELL LJ. I agree. SINGLETON J. I agree. Appeal dismissed. Solicitors: Norman Hart & Mitchell (for the plaintiffs); Sharpe, Pritchard & Co agents for G F Thompson, Wednesbury (for the defendants).
