CASE 1
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1947] 1 All ER 498
Categories: LEISURE AND LICENSING; LOCAL GOVERNMENT
Court: KING’S BENCH DIVISION
Lord(s): HENN COLLINS J
Hearing Date(s): 27, 28 FEBRUARY 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.
It is not ultra vires a licensing authority, when allowing, under s 1(1) of the
Sunday Entertainments Act, 1932, cinematograph theatres in their area to be
opened on Sundays, to impose a condition that children under the age of 15
years, whether accompanied by an adult or not, should be excluded. The
authority, when imposing conditions, may take into consideration matters which
do not directly affect the premises or the nature of the performance, but which
are designed to effect a benefit to the community.
Harman v Butt ([1944] 1 All ER 558) followed.
Theatre de Luxe (Halifax) Ltd v Gledhill ([1915] 2 KB 49) distinguished.
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 judgment
Theatre de Luxe (Halifax) Ltd v Gledhill, [1915] 2 KB 49, 112 LT 519, 79 JP
238, 31 TLR 138, 24 Cox CC 614, sub nom Halifax Theatre de Luxe Ltd v
Gledhill, 84 LJKB 649, 42 Digest 920, 921, 160.
Harman v Butt [1944] 1 All ER 558, [1944] KB 491, 114 LJKB 99, 170 LT
355, 108 JP 229, 60 TLR 341, Digest Supp.
Action
Action by licensees of a cinematograph theatre for a declaration that a condition
attached to a permission granted by the licensing authority for Sunday
performances was ultra vires. The facts appear in the judgment.
Gallop KC and Sidney H Lamb for the plaintiffs.
Fitzgerald KC and Vernon Gattie for the defendants.
Page 499 of [1947] 1 All ER 498
28 February 1947. The following judgment was delivered.
HENN COLLINS J. This is an action in which the plaintiffs, Associated
Provincial Picture Houses Ltd seek a declaration against the mayor, aldermen
and burgesses of the borough of Wednesbury to the effect that the limitation in a
licence which the defendants granted in respect of performances in
cinematograph theatres on Sunday within their area was beyond the powers of a
local authority to impose, namely, that a child under the age of 15 years,
whether accompanied by an adult or not, was to be excluded from Sunday
performances.
The Act under which the local authority acted was the Sunday Entertainments
Act, 1932, s 1 of which provides that the authority which has power in the area
to grant cinematograph licences, may, notwithstanding any enactment relating
to Sunday observance, allow places in their area to be opened on Sundays for
the purpose of cinematograph entertainments, and these are the significant
words: “subject to such conditions as the authority think fit to impose.” The
plaintiffs say that, in acting under that section, the local authority must act
reasonably, and, subject to a proper understanding of that phrase, I think it is
common ground that they must; but what is said is that the test of
reasonableness is what the court thinks reasonable rather than what the local
authority think reasonable. That is a strong contention and one which would
require to be supported by clear words in the section because the words in
themselves are without limitation.
The chief support in favour of the plaintiffs’ argument is to be found in Theatre
de Luxe (Halifax) Ltd v Gledhill. In that case there was a difference of opinion
in a court consisting of three judges. The high-water mark on the other side is to
be found in Harman v Butt, a decision under the Act of 1932, and it is said that I
have a free hand to decide as I think fit.
Let us first see whether there really is such a conflict as has been indicated. I
have come to the conclusion that there is not. Theatre de Luxe (Halifax) Ltd v
Gledhill was not a decision under the Act of 1932. It was a decision under the
Cinematograph Act, 1909, and very different considerations, it seems to me, are
to be applied to an Act which abridges personal rights from those which apply
to one which tends to enlarge them. The approach is different. When an act
circumscribes private rights, this court, as has been pointed out very many
times, is not astute to find that the abridgment is greater than necessity requires.
Before the passing of the Cinematograph Act, 1909, anybody was free to give a
cinematograph performance, all other things being equal, by whatever means he
liked. The Act of 1909 was an Act to make better provision for securing safety
at cinematograph and other exhibitions and introduced for that purpose a system
of licensing. It was not to be supposed, ex facie, at any rate, that the licence
which the Act contemplated was to go beyond the purposes for which the Act
was expressed to have been passed, and the view of the majority in that case
was that the ambit of the discretion of the licensing authority was circumscribed
by the conditions visualised by the Act. The third member of the court, Atkin J
took the view that among the considerations which bore on that question was
the question whether what was proposed was in the public interest. That alone
was the line of difference between them. Whenever that case was cited in
relation to the Cinematograph Act, 1909, it was, I will not say, blown on, but at
any rate, strictly cribbed, cabined and confined within its particular
circumstances, and it has never been taken, as I see it, for a decision on the
words which appeared in s 2(1) of the Act: “on such terms and conditions and
under such restrictions as … the council may by the respective licences
determine,” or any similar words, wherever they appear and in whatever
correlation.
In Harman v Butt Atkinson J had to consider, not an Act abridging the rights of
the subject, but one which did exactly the opposite thing. Up to the passing of
that Act it was unlawful to hold a cinematograph exhibition on Sunday. The Act
enabled performances to be given on Sunday, which was an enlargement of the
public right, and the same considerations did not obtain in that case as obtained
in the earlier case, and the difference of approach may account for the
difference between the two decisions. I think that that is the explanation.
Atkinson J felt himself in no difficulty in deciding under the Act of 1932 that it
was not ultra vires the authority to impose a condition that no child under the
age of 16 years should be admitted, that is to say, it was not beyond their
powers to take into consideration matters which did not
Page 500 of [1947] 1 All ER 498
directly affect the premises or the nature of the performance, but which were
designed to effect a benefit to a section of the community.
Which of those two authorities should I follow? It was urged on me that I was
untrammelled by authority, but I do not take that view. Other things being
equal, I would naturally accept as right, and binding on me in that sense, the
decision under the Act of 1932 of Atkinson J unless there is something in the
Divisional Court decision to constrict me to the other view. I have given my
reasons for thinking that the earlier decision is not really in pari materia with
that which I have to decide today, and without any hesitation, therefore, I follow
the decision in Harman v Butt, I hold that this limitation is not outside the
powers of the defendant local authority, Wednesbury Corporation, and I decline
to make the declaration which the plaintiffs seek. Consequently, the action is
dismissed, with costs.
Judgment for defendants with costs.
Solicitors: Norman Hart & Mitchell (for the plaintiffs); Sharpe, Pritchard & Co
agents for G F Thompson, Wednesbury (for the defendants).
……………………………………………………………………………...
THE BRIEF
1. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
1 KB 223, Lord Greene MR, Somervell LJ & Singleton J
2. Facts:
The plfs were owners and licensees of Gaumont Cinema in Wednesbury,
Staffordshire. The def was the licensing authority for that borough.
Under the Cinematograph Act 1909, cinemas could be open from Mon – Sat but
not Sundays.
Under a Regulation, the commanding officer of military forces in a
neighbourhood could apply to the licensing authority to open a cinema (on
Sunday?) Harman v. Butt
The Sunday Entertainments Act, 1932 legalized opening cinemas on Sundays
by the local licensing authorities “… subject to such conditions as the authority
think fit to impose” after a majority vote by the borough.
The defs gave the plfs a license to give performances on Sunday under the
Cinematograph Act, 1909 and the Sunday Entertainments Act, 1932 s1 (1) with
the ff. condition, “No children under the age of 15 yrs shall be admitted to any
entertainment, whether accompanied by an adult or not”.
3. Procedure:
Plfs sued the defendants to get a declaration that the defs acted ultra vires and
unreasonably by giving that condition.
The judge dismissed the action and he plfs appealed to the KB.
4. Issues:
Whether the condition the defs gave barring the plfs from allowing children
under 15 years entry into the cinema on Sundays (with or without their parents)
was ultra vires and unreasonable.
5. Holding:
Appeal dismissed because;
The defs did not act ultra vires or unreasonably in giving the condition that 15yr
olds should not be allowed to visit the cinemas on Sunday.
6. Reasons:
Plfs misunderstood the effect of the discretionary power the Act gave the local
authorities.
The Act is an executive one and not a judicial one.
The Act allows the local authorities the power to give conditions without any
limit, according to its language
The statute does not provide for any appeal from the local authority’s decision.
The court can only interfere with an act of executive authority if it is proved the
authority breached the law. The one asserting the breach must prove it.
The court cannot substitute itself for a local authority that someone claims has
breached the law. It can only determine whether it is true or not.
Executive discretion can only be challenged in a limited class of case. When
discretion of this kind is granted, the law recognizes certain principles upon
which that discretion must be exercised, but within the 4 corners of those
principles of the discretion is an absolute one and cannot be questioned in any
court of law. (The principles are those that the court looks to in considering any
question of discretion of this kind)
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, which the authority exercising the discretion ought to have
regard to, then in exercising the discretion it 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, the authority must disregard those irrelevant collateral matters.
People attack the powers of local authorities on grounds such as:
Bad faith, dishonesty, unreasonableness, attention given to extraneous
circumstance, disregard of public policy etc… (they overlap)
Discretion must be exercised reasonably. Unreasonable is used to cover things
people think mustn’t happen.
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.
He must exclude form his consideration matters, which are irrelevant to what
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, there may b something so absurd that no sensible person could ever
dream that it lay within the powers of the authority.
E.g. in Short v. Poole Corp a teacher was sacked because she had red hair. It
was unreasonable and in bad faith
The subject matter of the condition was one that the local authority could
rightfully consider – the well-being and physical and moral health of children.
The plf is trying to say that the court is the one that should decide what is and is
not reasonable and not the local authority. However, Parliament has entrusted
the local authority with the matter that it can handle best.
The plf was arguing that the condition was unreasonable because the court
would consider it a decision that no reasonable body would make. This is not
the case. “Honest and sincere” people would have different views on this
subject. Roberts v. Hopwood is not a correct authority to say that the court has
some overriding power to decide what is reasonable and unreasonable. The
court has nothing of the kind.
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 that are set in that
position and, provided they act, as they have acted, within the four corners of
their jurisdiction, this court, in my opinion, cannot interfere.”
No need for reference to cases since the court can decline to interfere with
something prim facie within the powers of executive authority based on simple
and well-known principles
In Harman v. Butt a licence to open a cinema on Sundays was given based on a
representation of the commanding officer of forces stationed in the
neighbourhood. Atkinson J ruled that children under 16 could not go there on
Sunday because the condition did not only apply to the users of the premises but
was for the interest of a section of the community. The defs were entitled to
consider matters relating to the welfare and spiritual well-being of the
community and any section of it.
However in R v Burnley Justices and Ellis v Dubowski, the authorities had
included in the conditions, a delegation of their powers to an outside body. The
delegation itself was not wrong – the problem was that they did not have the
power to delegate the discretion given them by the legislature to another entity.
Theatre de Luxe (Halifax), Ld v Gledhill is bad law. The court puts a narrow
construction on the licensing power given by a different act. Atkin J’s
dissenting opinion said that the power to impose conditions was nothing like so
restricted as the majority judges thought.
Atkin J: conditions must b
Reasonable
In respect of the use of the licensed premises
In the public interest
Subject to that restriction, there is no fetter upon the power of the licensing
authority.
However, Lord Greene MR says, Atkin was in no way saying that it was the
court’s job to decide what it thinks is reasonable but rather whether what is
prima facie within the power of the local authority is a condition which no
reasonable authority, acting within the four corners of their jurisdiction could
have decided to impose.
He also does not believe Atkins is saying that the court can place it’s view of
public interest above the view of the local authority. Public interest is a proper
and legitimate thing a local authority can have in mind (moral and physical
health of children)
Principle:
The court is entitled to investigate the action of the local authority with a view
to seeing whether they have taken into account matters, which they ought not
to take into account, or, conversely, have refused to take into account or
neglected to take into account matters, which they ought to take into account.
If the local authority is right, it is still possible for them to come to an
unreasonable conclusion in the 4 corners of matters they can consider. If so,
then the court can interfere. The power of the court to interfere in each case
is not as an appellate authority to override a decision of the local authority,
but s 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 them.
7. Comments:
Plf: Both acts give level for different openings.
Weekday opening (1909 Act)
Sunday Opening (1932 Act)
Sunday opening under Defence Regulation 42B (allowing certain naval, milit or
air force authorities to certify that a Sun opening was desirable enabling local
authorities permit holders of such certificates to open on Sun) – was in force till
end of 1947
