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QUEEN ON APPLICATION OF Mr. Jivko Dinev; Mr. Dritan Duro; Mr. Petrit Gorovelli; Mr. Anthony Graham; Ms. Svetlana Jemeljanova; Ms. Galina Kirk; Mr. Iordan Kirtchev; Mr. Walery Martynchyk; Ms. Rebecca Newman; Mr. William Robinson; Mr. Igor Romanko; Mr. Ilham Safarli; Mr. Igor Slaouk; Mr. Elidon Veshi; Ms. Olga Yatchmenkova and and Mr. Paolo Zeminian v. CITY OF WESTMINSTER COUNCIL [2000] EWHC Admin 407 (24th October, 2000)
Case No: CO/1096/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24th October 2000
B e f o r e :
THE HON MR JUSTICE MAURICE KAY
THE QUEEN
ON THE APPLICATION OF
(1) Mr. Jivko Dinev (2) Mr. Dritan Duro (3) Mr. Petrit Gorovelli
(4) Mr. Anthony Graham (5) Ms. Svetlana Jemeljanova (6) Ms. Galina Kirk
(7) Mr. Iordan Kirtchev (8) Mr. Walery Martynchyk (9) Ms. Rebecca Newman
(10) Mr. William Robinson (11) Mr. Igor Romanko (12) Mr. Ilham Safarli
(13) Mr. Igor Slaouk (14) Mr. Elidon Veshi (15) Ms. Olga Yatchmenkova and
(16) Mr. Paolo Zeminian
v.
THE CITY OF WESTMINSTER COUNCIL
-------------------------
Mr. Jonathan Miller (instructed by Bow and Shore) appeared for the
Applicants
Mr. Timothy Spencer (instructed by The City of Westminster) appeared
for the Respondents
J U D G M E N T
As Approved by the Court
Crown Copyright
MR JUSTICE MAURICE KAY:
(1) Since sometime in the mid 1980s portrait artists have offered their
services for reward in a part of Leicester Square in the West End of London
known as Swiss Court. Their numbers have varied. By 1999 there were probably
about one hundred and fifty of them, although the attendance at any one time
was much less. They came not just from the United Kingdom but from many other
parts of the world as well. When the London County Council (General Powers)
Act 1947, Part 1V introduced the regulation of street trading it only applied
to trading in the form of the sale of goods (section 15(1)). This remained the
case until 1990 when the London Local Authorities Act of that year defined
street trading so as to include supplying or offering to supply any service in
a street for gain or reward (section 21(1)). It is common ground that after
1990 the portrait artists in Leicester Square operated unlawfully in that they
did not possess licences under the 1990 Act. The local authority is the
Westminster City Council (the Council). Although the Council had the power to
prosecute the portraits artists as unlicensed street traders from 1990, its
practice was not to prosecute. During the 1990s the Council from time to time
considered its strategy for Leicester Square. Whilst it was happy for portrait
artists to continue to work there, it became concerned about aspects of their
presence. Representations were made to the Council by the Leicester Square
Association (which includes local residents, local businesses and local
councillors), expressing concern about the increasing number of portrait
artists in the area and the associated risk to pedestrian safety. The police
also expressed concern about incidents of theft, intimidation and drug dealing
in the immediate vicinity of the artists. There was no suggestion that the
artists themselves were committing criminal offences. It was simply that they
attracted large numbers of people who were easy targets for criminals. Street
trading within the Council's area is now governed by the City of Westminster
Act 1999. Upon the coming into force of that Act on 25 May 1999 the portrait
artists continued to be unlawful unlicensed street traders. In October 1999
the Licensing (Major Issues) Sub Committee of the Council first considered a
proposal to establish a temporary licensing scheme for portrait artists in
Leicester Square. The same Sub Committee considered the matter further on 15
February 2000. On that occasion it was resolved to introduce such a scheme on
a three month trial basis. The scheme commenced on 27 March 2000. On 24 March
2000 the present application for judicial review was lodged on behalf of
seventeen of the portrait artists. On the same day Carnwath J granted
permission to apply for judicial review. The Form 86A and the Skeleton
Argument prepared by counsel (not Mr. Miller) on behalf of the Applicants are
lengthy documents challenging the scheme on numerous grounds which included
reliance upon the European Convention on Human Rights. However, when Mr.
Miller began his submissions he made it clear (wisely, in my view) that he was
limiting the challenges to two. The first is based on the right of
establishment in European Community Law. The second alleges a failure properly
to consult prior to the introduction of the scheme. I now turn to these two
grounds.
Ground 1: the right of establishment
2. The seventeen Applicants include British Citizens, Russians,
Kosovans, Bulgarians and others from Ireland, Belarus, Lithuania, Brazil and
Azerbaijan. Some are in this country by virtue of having been granted leave to
enter and remain, some are asylum seekers, some have work permits. It is
common ground that they all have the right to engage in self employment in this
country. This being so, it is unnecessary for me to set out the plethora of
treaty and statutory provisions. Mr. Spencer accepted that, through different
routes, the Applicants are all beneficiaries of the right of establishment in
Community Law, even though the majority of them are not nationals of Member
States.
Article 43 of the EC Treaty (formerly Article 52) provides as follows:
"Within the framework of the provisions set out below, restrictions on the
freedom of establishment of nationals of a Member State in the territory of
another Member State should be prohibited. .....
Freedom of establishment should include the right to take up and pursue
activities as self-employed persons under the conditions laid down for its own
nationals by the law of the country where such establishment is effected,
......"
3. The general approach of Community Law to Article 43 was set out by
the Court of Justice in Reinhard Gebhard v. Consiglio dell'Ordine degli
Avvocati e Procuratori di Milano [1995] ECR 1-4165, 4197:
"......National measures liable to hinder or make less attractive the exercise
of fundamental freedoms guaranteed by the Treaty must fulfil four conditions:
they must be applied in a non discriminatory manner; they must be justified by
imperative requirements in the general interest; they must be suitable for
securing the attainment of the objective which they pursue; and they must not
go beyond what is necessary in order to attain it."
That there is a general interest in the regulation of street markets is obvious
see Regina v. Tower Hamlets LBC, ex parte Kayne-Levenson [1975]
QB 431, 450, per Lawton LJ. The interplay between the regulation of street
trading and article 43 was considered by the Court of Appeal in Regina v.
Southwark Crown Court ex parte Watts (1991) 4 Admin LR 289 in which
Russell LJ said (at pages 295 to 298):
"In our judgment the scope of freedom of establishment is indicated by the
provision of article [52] itself that it 'shall include the right to take up
and pursue activities as self employed persons....under the conditions laid
down for its own nationals by the law of the country where such establishment
is effected......' There is nothing to suggest that nationals of other member
States are not entitled to apply for and exercise licences on the same
conditions as apply to the appellant. In so doing such nationals are not
hindered by any prescribed conditions....the provisions governing licence
holders apply to all of them without distinction, and there is nothing to
suggest they were adopted for discriminatory purposes. ....
On this topic [viz. discrimination by being disadvantaged] the judge was
content to hold that `Provided a national of a member State can compete on
equal terms for a stall' there is no discrimination. We agree. The Act has no
discriminatory effect, and is in our judgment not incompatible with Article
52."
4. How, then, does all this apply to the present case? The mere
introduction of a licensing scheme for portrait artists in Leicester Square
would not in itself fall foul of Article 43. Mr. Miller submitted that where
the scheme in the present case contravened the provisions of article 43 was in
the licence application process. The wording of the application form which was
used at the inception of the licensing scheme required an applicant to specify
his place of birth, his nationality and whether he required a work permit to
work in this country. The form also contained a check list which carried the
warning:
"Failure to provide any of this information may result in your application not
being accepted"
The check list included:
"4. Evidence of payment of national Insurance contributions
5. Evidence of art qualification/ membership of an artists association
6. Work permit if appropriate."
Mr. Miller submitted that this application form was discriminatory and went
further than necessary by reference to the other criteria set out in
Reinhard Gebhard. It seems that the Council came to a similar
conclusion because by June 2000 and as a result of legal advice it had
withdrawn the form as originally drafted and substituted a new form which Mr.
Miller accepted is compatible with article 43. For my part, I am not at all
sure that in its original form the document was incompatible with article 43.
However, assuming that it was so incompatible, the question arises as to
whether such an incompatibility merits relief now that it has been cured. Mr.
Miller's answer to that is that some of the applicants applied for and obtained
licences before the form was altered and therefore suffered a detriment in
paying fees pursuant to an illegal scheme, whilst others were deterred from
applying for a licence between March and June by the discriminatory terms in
the application form. In my judgment, and having regard to the evidence in
this case, these are not attractive arguments to justify the grant of relief at
this stage. Accordingly, even if the primary submission about the application
of article 43 to the original forms were correct in law, in the present
circumstances I would refuse relief in relation to it.
Ground 2: failure to consult
5. Although Mr. Miller accepted that there is no statutory duty to
consult in relation to the introduction of a temporary licensing scheme
(as there is in relation to a resolution designating a street as a "licence
street": see sections 5 and 6 of the 1999 Act), he submitted that the
circumstances of this case gave rise to a legitimate expectation on the part of
the Applicants that they would be consulted prior to the adoption of the
temporary scheme. Those circumstances included the uninterrupted history of at
least fourteen years and the fact that the Applicants' ability to earn their
living was at stake. This submission was based on Regina v. Rochdale
MBC, ex parte Schemet (1993) 91 LGR 425 in which Roch J had to consider
the withdrawal of a policy whereby the local authority paid travelling expenses
for the attendance of pupils at denominational schools outside the area. In
granting relief, Roch J relied on the speech of Lord Diplock in Council
of Civil Service Unions v. Minister for The Civil Service [1985] AC 374, 408:
"To qualify as a subject for judicial review the decision must have
consequences which affect some person (or body of persons) other than the
decision-maker, although it may affect him too. It must affect such other
person either (a) by altering rights or obligations of that person which are
enforceable by or against him in private law; or (b) by depriving him of
some benefit or advantage which either (i) he had in the past been permitted by
the decision - maker to enjoy and which he can legitimately expect to be
permitted to continue to do until there has been committed to him some rational
grounds for withdrawing it on which he has been given an opportunity to
comment; or (ii) he has received assurance from the decision-maker that it
will not be withdrawn without giving him first an opportunity of advancing
reasons for contending that they should not be withdrawn."
It is the passage I have emphasised that Mr. Miller sought to apply to the
facts of the present case. That passage does not require any promise or
assurance of consultation by the decision-maker. It was restated by Simon
Brown LJ in his well-known classification of the different types of legitimate
expectation in Regina v. Devon County Council, ex parte Baker
[1995] 1 All 73, 88-89, in the following terms:
"(2).....the concept of legitimate expectation is used to refer to the
claimant's interest in some ultimate benefit which he hopes to retain (or, some
would argue, attain). Here, therefore, it is the interest itself rather than
the benefit that is the substance of the expectation. In other words the
expectation arises not because the claimant asserts any specific right to a
benefit but rather because his interest in it is one that the law holds
protected by the requirements of procedural fairness; the law recognises that
the interest cannot properly be withdrawn (or denied) without the claimant
being given an opportunity to comment and without the authority communicating
rational grounds for any adverse decision."
Simon Brown LJ referred to Schemet as one of the "clear examples
of this head of legitimate expectation".
6. The question, therefore, is whether the circumstances of the present
case fall within these established principles. Mr. Spencer, in submitting that
they do not, advanced two separate arguments. First, he submitted that
there had in fact been consultation by the Council and that it amounted to
"more than enough". The evidence makes it clear that the Council consulted one
of the Applicants in his capacity as a member of the West End Artists
Association and that he made representations on behalf of that Association
supporting a licensing scheme in principle. So did another artist (not one of
the Applicants) who was consulted on behalf of the Portrait Artists Association
of Leicester Square. In addition, the police, local shopowners and other
interested parties were consulted. The problem with the Applicants was that
they were part of a diverse groups of artists which was subject to turnover and
their identities were not always known. Moreover, there had been an attempt to
reach a wider audience by means of notices in Leicester Square. However, the
difficulty with this argument is that the Applicant's solicitor was in
correspondence with the Council from 24 November 1999. On 9 February 2000, in
response to a request from the Applicant's solicitors, a Council Official wrote
to the solicitors purporting to enclose a copy of a report but, because of an
error, the report was not in fact enclosed and by the time the omission had
been remedied the decision to implement the temporary scheme had already been
taken. This disposes me to the view that the practical difficulties of
consulting the Applicants - if, indeed, they had a legitimate expectation of
consultation - would not have been such as to render consultation impossible or
impracticable.
7. Mr. Spencer's second submission was, in my judgment, more
telling. He referred back to the language of Lord Diplock in the
CSSU case and, in particular, the words "which he can
legitimately expect to be permitted to continue"; to the speech of Lord
Fraser of Tullybeltan in the same case, again emphasising the word "legitimate"
(at p. 401); and to the reference of Simon Brown LJ in ex parte
Baker to an interest "that the law holds protected". The present case
is concerned with unlicensed street trading, a repeated criminal offence
notwithstanding the practice of non-enforcement. As this unlawful activity has
created increasing problems for the Council in the recent past, the Council is
naturally and properly concerned to address those problems. It has chosen to
do so by way of the temporary licensing scheme. In those circumstances, the
law should be slow to extend to persons acting unlawfully a legitimate
expectation of consultation because their expectation does not have a basis in
legitimacy and their interest is not one that the law holds protected. I am
persuaded by these submissions that, whilst I do not say that there can never
be circumstances in which persons acting unlawfully may successfully invoke a
legitimate expectation, the circumstances of this case do not give rise to a
legitimate expectation of consultation. Accordingly, the second ground of
challenge by Mr. Miller also fails.
Conclusion
8. The two grounds of challenge which were not abandoned by Mr. Miller
having failed, this application for judicial review is dismissed. I ought not
to leave it without recording some further facts which would have a part to
play if the application had not been substantively rejected. Since the scheme
came into operation, not a single applicant who has sought a licence has been
refused one. Indeed, almost half of the Applicants are themselves licence
holders. The Council still has licences and pitches available. All this tends
to suggest that the Council has managed to bring order to a problem that was
seen to be getting out of hand whilst retaining a pleasure-giving facility from
which not a single artist has been excluded by a licence refusal. On any
basis, the scheme is a reasonable one, taking into account the different
interests which required consideration (even if not consultation). There is
nothing about which the Applicants can properly complain in relation to the
scheme, its application or its cost.
- - - - - - - - - - - -
MR JUSTICE MAURICE KAY: In this case there will be judgment in
accordance with that which has been handed down and the application for
judicial review is refused.
MR SPENCER: My Lord, I am obliged. I make one application. All these
particular applicants were legally aided, I therefore ask for an order for
costs not to be enforced without the leave of this court.
MR JUSTICE MAURICE KAY: That is the unpopular formulation at the moment,
is it not? You now get an order that it is adjourned generally.
MR SPENCER: Adjourned generally, my Lord.
MR JUSTICE MAURICE KAY: I have forgotten the exact form of words but I
am sure the associate will know when the order is typed. Any point to make on
that, Mr Millar?
MR MILLAR: I am not in a position to resist costs, but can I ask for a
legal aid detailed assessment of the applicant's costs?
MR JUSTICE MAURICE KAY: Yes, of course. Thank you both very much.
© 2000 Crown Copyright
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