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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mecca Bingo Ltd, Re Petition for Judicial Review [2004] ScotCS 136 (08 June 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/136.html Cite as: [2004] ScotCS 136 |
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OUTER HOUSE, COURT OF SESSION |
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P1353/03
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OPINION OF LORD CLARKE in the Petition of MECCA BINGO LIMITED Petitioner; for Judicial Review of three decisions of the City of Glasgow Licensing Board dated 20 June 2003 under Section 32 of the Gaming Act 1968
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Petitioners: Sir M. Campbell, Q.C.; Skinner; Dundas & Wilson, C.S.
Respondents: Peebles, Q.C., S. Wolffe; City of Edinburgh Council
8 June 2004
Introduction
[1] This petition, for judicial review, came before me for a first hearing. At the commencement of the hearing the petitioners sought to add substantial new averments to their petition. This was opposed by the respondents but, in the event, I allowed the adjustment for the petitioners to be made. In broad measure these new adjustments shifted the petitioners' position from simply attacking certain decisions of the respondents, in the exercise of their discretion under Section 32 of the Gaming Act 1968, to adding an attack on the policy upon which those decisions were based or, alternatively, an attack based on the respondents' failure to produce adequate reasons for that policy.[2] The respondents are the Licensing Board for the City of Glasgow, constituted under Section 1 of the Licensing (Scotland) Act 1976. In that capacity they deal with, among other things, licensing of bingo clubs. Part III of the Gaming Act 1968 deals generally with control of supply and use of gaming machines. Section 31 of the Act specifically deals with the use of gaming machines in premises which are licensed or registered as a club or miners' welfare institute. Section 32(1)(b) provides as follows:
"The maximum number of machines to which this Part of this Act applies which may be made available for gaming shall be ...........
(b) in the case of bingo club premises (as defined by Section 20 of this Act), four ..."
Parliament has, however, provided for the possibility of a relaxation of this maximum number. It did so by enacting the provisions of Section 32(1)(b) and Section 32(3). Those provisions are in the following terms:
Section 32(1)(b) provides
"In connection with any application for the grant or renewal of a licence under this Act the applicant may request the licensing authority to give -
(b) in the case bingo club premises (as defined by Section 20) a direction under sub-section (3)."
Section 32(3) is in the following terms:
"Where a request is made for a direction under the sub-section, and the licensing authority grant or renew the licence, they may, on doing so, give a direction under this sub-section specifying a maximum number of AWP machines."
Section 32(4) then goes on to provide:
"At any time when -
(a) a direction under sub-section (3) is in force, and
(b) the number of AWP machines available for gaming on the premises does not exceed the number specified in the direction,
those machines shall be disregarded for the purposes of Section 31."
Section 32(5) defined an "AWP machine" as
"a machine to which this part of the Act applies in respect of which either -
(a) the conditions specified in Section 34(2) and (3), or
(b) the conditions specified in Section 34(5)(B) and 5(C),
are observed."
"Meeting of the Licensing Board on 29 August 2003.
Review of policies of the Licensing Board
Summary of policies."
At para. 14, page 10 of that document the following is stated:
"Gaming Act 1968 - Policy relative to directions in terms of Section 32 - AWP machines in bingo halls.
Purpose of policy.
To regulate the number of AWP machines in bingo halls for the purpose of safety and convenience of usage and to protect the traditional social atmosphere in bingo clubs.
Date of introduction
October 1993
Effect of policy
The Board in general will only make a direction in terms of Section 32 after having regard to the following main considerations:-
(1) The principal and major use of the premises should always remain as a venue for the playing of bingo and the making of the direction in terms of Section 32 of the 1968 Act should not detract from that use.
(2) In support of (1) above the AWP machines should be positioned in a single enclosed area completely separate from the area where bingo is played and the presence of the machines on the premises should not be visible to the public from outside the premises.
(3) The number of machines in the premises should not exceed that which will compromise safety or convenience of use.
(4) The applicant should demonstrate a demand for the presence of a larger number of machines on the premises and therefore a requirement for a Section 32 direction.
In circumstances where the Board determine to grant the Section 32 direction the following criteria is generally applied in deciding the number of machines permitted on the premises:-
For premises with an occupant capacity of up to 1000 persons - 20 machines.
For premises with an occupant capacity above 1000 persons - 20 machines plus 2 machines for every 100 occupants above 1000 (with no allowance for any number of occupants below 100) up to a maximum of 37 machines.
The Board has determined that the number of AWP machines permitted in each case will be unaffected by the 4 jackpot machines, which bingo premises can now by law additionally provide."
There was no suggestion that the respondents had ever departed from that policy in respect of applications made to them under Section 32 since the policy's inception in 1993.
[4] The petitioners' applications for renewal of the bingo club licences and their applications for directions under Section 32 attracted no objections. After hearing Mr Loudon, in respect of the applications for Section 32 directions, and having retired to consider the matter, the respondents granted renewal of all three bingo club licences, but issued Section 32 directions which adhered to the maximum figure of AWPs which had obtained previously in respect of each of the premises. It is against the refusals to increase the maximum numbers, as requested by the petitioners, that the present petition is directed.[5] There is some history to this matter. That history revealed that for some time the petitioners have felt aggrieved that the respondents have refused to alter their policy to put a cap on the number of AWPs allowed at any bingo hall premises, within their area, at 37. I was advised by counsel for the petitioners that, in so doing, the respondents are out of step with other licensing authorities in other areas operating their powers under Section 32. This is not the first occasion on which challenges have been made, in judicial proceedings, of decisions of the respondents in respect of their exercise of discretion under Section 32. In the case of Gala Leisure Limited v Glasgow Licensing Board (2000) 15 S.L.L.P. 16 another operator of bingo halls sought judicial review of a decision by the respondents which refused a request for a direction to permit a maximum of 50 AWPs in bingo club premises and which instead restricted the maximum number to 37. The petitioners, in that case, sought to attack the decision, on the basis that they were not given, and did not know, the reason for it. In the absence of reasons, it was submitted that the Court should infer that the refusal to allow 50 machines was manifestly irrational, i.e. so unreasonable that no licensing authority acting reasonably could have reached that decision. For anything that was disclosed, it was said, the figure of 37 was entirely arbitrary and related to an arithmetical calculation for which no justification was advanced. The petitioners in that case, furthermore, contended that it was quite wrong that the discretion of the respondents should be fettered by some formula, calculation or figure. While it was not disputed that a licensing board might have a policy, the policy could not be applied blindly and without reference to the facts of the instant case. In any event, in the absence of any justification for what appeared to be an arbitrary decision, it was irresistible that the board had either taken account of irrelevant or immaterial considerations or had failed to take account of all the relevant material considerations which they ought to have taken into account. The Lord Ordinary, Lord McCluskey, rejected all of these arguments and refused to disturb the decision complained of. I will return to consider that case further in due course.
[6] In the present case, while the petitioners' pleadings, leave the impression, to some extent, that the respondents' policy was not made known to them on or prior to the meting of 20 June 2003, it is quite apparent, and was conceded at the hearing before me, that Mr Loudon, when he made the applications was fully aware of the respondents' policy. In addressing them for approximately 45 minutes, as he did, his objective was to persuade them to change the policy, or at least to depart from it in relation to the request for directions he was making on behalf of the petitioners. The petitioners, in their own pleadings, admit that the policy in question evolved in or about October 1992 and did so in the context of an application by the petitioners themselves who were then known as Top Rank - see Article 3 of the petition.
[7] When the respondents announced their decision at the conclusion of the hearing on 20 June 2003, Mr Loudon for the petitioners, addressed the Chairman in the following terms:
"Thank you, your honours. Your clerk will be writing to me no doubt. You wouldn't like to give me reasons at the same time."
The respondents' clerk responded, "I will let you know the outcome" - see transcript of proceedings 6/3 of process, page 126. On 23 June 2003 Mr Loudon, on behalf of the petitioners, sent a fax message, (6/4 of process), to the respondents' clerk which was inter alia in the following terms:
"I refer to the hearing on Friday and confirm my request for written reasons for the respective decisions. You indicated you would intimate the decisions but clearly my clients need to fully understand the Board's decisions and to that end I would very much appreciate having a letter explaining the reasons behind these."
"I refer to the hearing on Friday 20th June and my fax of 23rd June when I confirmed my verbal request to the board for written reasons for the respective decisions. You indicated at the time you would intimate the decision (which I agree is what is provided for in the 1968 Gaming Act), and whilst these are awaited they will of course not really clarify the position.
As you will have anticipated we have taken counsel's opinion on the matter and, despite what the Act says, we believe our request for reasons was an equitable request, and that the Board should give a clear and understandable statement of reasons for its decisions in these matters having regard to its obligations in terms of the European Convention on Human Rights."
"I refer to your fax. I am certainly not denying you reasons in this case. The only issue is at what part of the process the reasons fall due. I am happy to rely on the current legislation. Clearly if a legal challenge was pursued against the Board's decision then I will provide reasons. It strikes me however that the reasoning behind the Board's policy and decisions in this regard has been well rehearsed in the past and is already known to you."
The Petitioners' case as pled
[10] In their petition, the petitioners seek the following orders.
"(a) Declarator that the Board erred in law and exercised their discretion unreasonably in failing to provide written reasons for their decisions on said Section 32 directions,
(b) Declarator that in reaching their decisions on the said directions, the Board erred in law and exercised their discretion unreasonably,
(c) Declarator that the policy of the respondents is irrational and ultra vires,
(d) Reduction of said decisions on said directions,
(e) An order ordaining the Board to reconvene quam primum to reconsider said applications, and
(f) any other order or orders as to the Court shall seem proper."
In support of their application for the foregoing orders the petitioners rely in the first place on averments in Statement of Fact 7. These are, inter alia, to the following effect:
"That in refusing to provide written reasons the Board erred in law, exercised their discretion unreasonably and acted in breach of the petitioners' human rights. As aforesaid, in terms of the Human Rights Act 1998, Schedule 1, Article 6, the petitioners are entitled in the determination of their civil rights and obligations to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment should be pronounced publicly. The proceedings before the Board were proceedings to determine the petitioners' civil rights and obligations. The decision on the number of AWPs allowed on the premises was a decision which had a direct and appreciable effect on the petitioners' right to carry on business. Article 6(1) was engaged. A decision which affects a party's substantive rights should be reasoned. Said decision should identify what were the reasons for the decision and the material factors which were taken into account in reaching it."
The petitioners then refer to certain authorities and conclude:
"In order to afford the petitioners a fair hearing, Section 32 of the 1968 Act requires to be read and given effect to in a way which is compatible with convention rights, as by giving a right to a statement of reasons for the board's decision."
In statement of fact 8 the petitioners then seek to challenge the respondents' decisions on the basis that the respondents reached their decisions in respect of the petitioners' applications, and others which they had considered at the hearing, in less than 30 minutes. In doing so it is averred that the respondents did not give proper consideration to the applications remitted to them for consideration and decision and so erred in law and exercised their discretion unreasonably. This ground of attack was, in submission, abandoned as a separate basis of seeking reduction of the respondents' decision and I was asked simply to take this factor into account as evidential material pointing to the overall inadequacy of the decision making process in this case.
[11] In statement of fact 9, the petitioners focus their attack on the respondents' policy. They do so in the following terms:
"Esto the decision to refuse in part the application was based on the respondents' policy, which is not known and not admitted, the respondents erred in law et separatim exercised their discretion unreasonably. Said policy was irrational. It purported to link the number of AWPs to be granted to occupancy capacity and not to demand. Believed and averred that the respondents failed to take into account the advice issued by the Gaming Board pursuant to paragraph 19 of Schedule 2 of the 1968 Act. The respondents are called upon to state how the figures for occupancy capacity under said policy are arrived at. It sought to impose an upper and lower limit on the number of AWPs for no apparent reason. In any event, the respondents arrived at their decision by a rigid and inflexible application of their policy."
This prong of attack was added, by way of the adjustments, made at the commencement of the hearing before me. In the event, however, it became, to a very considerable extent, the primary focus of the petitioners' case before me.
The Petitioners' Submissions
[12] In discussion before me junior counsel for the petitioners developed another apparent ground of attack, which is in no respect foreshadowed in the petitioners' averments, and that this was that the decisions in question, were arrived at shortly after the local government elections and were taken by a newly constituted board, when there was no indication that the persons making up the newly constituted board had themselves reviewed the policy and had themselves adopted it, as it were, as their own.[13] In opening his submissions, junior counsel for the petitioners, explained that the number of AWPs which the petitioners were enable to install in each of their bingo halls would have a significant effect on their profitability. It was contended that, not only would additional AWPs generate more income from existing members of the clubs in question, but would probably attract more members to those clubs. While it was accepted, on behalf of the petitioners, that the respondents were entitled to adopt and apply a policy in respect of the exercise of their powers under Section 32, that policy had to be exercised "fairly and properly" and had to be properly understood by the respondents themselves. Since the respondents had not provided written reasons for their decisions, the Court could not be satisfied they had complied with these requirements and there was nothing in the productions, which the respondents had lodged, to allay any concerns in this respect. Junior counsel referred me to the case of Coyle v City of Glasgow Council 1997 S.L.T. 453. That case was concerned with the provisions of Section 10(3) of the Civic Government (Scotland) Act 1982 which provides that the grant of a taxi licence may be refused by a licensing authority for the purpose of limiting the number of taxis in respect of which licences are granted by them, if, but only if, they are satisfied that there is no significant unmet demand for taxis in the area. In 1991 the licensing authority had determined that 1428 was the number of taxi licences necessary to meet demand in their district. The authority thereafter applied that figure as a matter of policy. In 1996 an application was made by Mr Coyle to the authority for a new taxi operator's licence. The application was refused on the ground that there was no significant unmet demand. The applicant appealed to the Sheriff, who allowed the appeal, and remitted the application to the council with a direction to grant the licence. The authority appealed the Sheriff's decision. The authority, before the Court, conceded that there was nothing in the material before the Court to indicate that the licensing committee had reconsidered the figure of 1428 at any time since 1991 but they argued that it would be impracticable to consider the matter at every meeting. The authority's appeal was refused, the Court holding that the licensing committee's assessment, under the relevant statutory provisions, had to be made in relation to the situation at the time when the application fell to be considered and that the committee had to be satisfied at that time that there was no significant unmet demand. As the committee had not applied their minds to the question of unmet demand at the time of considering the application, there was no proper basis on which they could be satisfied that there was no significant unmet demand. As to the issue of practicability raised by the authority, Lord President Rodger at page 456B-D had this to say:
"Counsel for the appellants submitted that it would be impracticable for the committee to consider the matter at every meeting. We do not agree. It appears that from time to time the appellants carry out an exercise to determine the level of demand for taxis in their area. Presumably such an exercise lay behind the decision in 1991. Where a figure has been determined in this way all that is required is that the matter should be kept under review by an official who has the information to judge whether the demand has increased since the matter was last considered. If he informs the committee that there has been no change in the level of demand, they can be satisfied that at that time there is no significant unmet demand if the relevant number of licences has already been issued. If, on the other hand, they are told that demand has increased, then they will require to reconsider the matter. Unless they do so, they will not be able to refuse to grant licences under Section 10(3) since they will not know whether the existing number of licences is sufficient to meet the increased demand."
Relying on that case, junior counsel for the petitioners, contended that, in the present case, there was no material before the Court which would indicate that the members of the respondents had even considered the policy properly, far less that they knew how the maximum figure of 37 had been fixed. In the absence of reasons, provided for their decisions, the inference could, and ought, to be drawn that this was the position and that would, in itself, entitle the petitioners to have the decisions reduced.
[14] Junior counsel then proceeded to examine certain authorities, in domestic law, in relation to the question of when, and under what circumstances, a decision maker is required to give reasons for his decision. These included R v Civil Service Appeal Board ex parte Cunningham (1991) 4 All E.R. 310, R v Home Secretary ex parte Doody (1994) AC 531 and Stefan v General Medical Council (1999) 1 WLR 1293. These, and other authorities, demonstrated that the law has reached a stage in its development where, while there is no absolute rule that in every case a decision maker, reaching a decision in the exercise of a discretionary function or power, is obliged to give reasons for the decision in question, the trend of the law has been towards an increasing recognition of a duty upon decision makers of many kinds to give reasons. As Lord Clyde put matters in Stefan at page 1300:
"This trend is consistent with current developments towards an increased openness in matters of government and administration. But the trend is proceeding on a case by case basis (Reg. v Kensington & Chelsea Royal London Borough Council, ex parte Grillo (1995) 94 L.G.R. 144), and has not lost sight of the established position of the common law that there is no general duty, universally imposed on all decision makers. It was reaffirmed in Reg. v Secretary of State for the Home Department, ex parte Doody (1994) 1 AC 531, 564, that the law does not at present recognise a general duty to give reasons for administrative decisions but it is well established that there are exceptions where the giving of reasons will be required as a matter of fairness and openness. These may occur through the particular circumstances of a particular case."
I must observe, at this stage, that, as I think senior counsel for the petitioners recognised, in his submissions to the Court, that whether or not the respondents had a legal duty to give reasons for the decisions in question, is somewhat beside the point, in the present case, since the reason for the decisions, at least in a narrow sense were perfectly obvious to the petitioners, namely, that the respondents had a policy to the effect that the maximum number of machines in any case would be 37. That policy was well known to the petitioners when they made their application for Section 32 directions. Having regard to the transcript of the proceedings, 6/3 of process, it is perfectly clear that the petitioners' agent, Mr Loudon was seeking to persuade the respondents either to abandon the policy or to depart from that policy in respect of the petitioners' applications. In the event the respondents chose not to do so. The real complaint of the petitioners, as matters developed before me, appears truly to be with the policy itself and, in particular, that the respondents have failed to provide any adequate rationale for it. I will return to these points in due course.
[15] As well as relying on domestic law in support of the petitioner's case that the decisions were deficient because of lack of reasons, junior counsel for the petitioners sought to pray in aid the provisions of Article 6(1) of the European Convention on Human Rights which are to the effect that;
"In the determination of his civil rights and obligations or of any criminal Charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Junior counsel for the petitioners submitted that since the incorporation of those provisions into domestic law, by virtue of the Human Rights Act 1998, the requirement for bodies, like the respondents, to give reasons for their decisions had been fortified. The case of Catscratch Limited v City of Glasgow Licensing Board (No. 2) 2002 S.L.T. 503 was referred to. It was concerned with the decision of a licensing board in refusing an application for a regular extension of permitted hours in relation to a nightclub which was attacked as having been contrary to Article 6 and the first protocol, Article 1 of the Convention. At page 504I-J The Lord Ordinary, Lord Johnston, said:
"For the purposes of the argument I am prepared to accept that Article 6 applies in the context of a hearing of this type i.e. a licensing board albeit it is administrative, and it is not in my opinion correct to regard the board as exercising the functions of a tribunal."
That dictum, it was submitted, supported the proposition that Article 6 of the Convention could be engaged, when considering the decisions of the respondents. In particular, it was contended that Article 6 would apply to any dispute relating to actions of an administrative authority which have a direct and appreciable effect on the enjoyment, or exercise of property rights or interests and, in particular, the right to carry on a business. Reference in that connection was made to a number of decisions of the European Court of Human Rights. In the first place I was referred to the case of Tre Traktorer A.B. v Sweden (1989) 12 E.H.R.R. 481. That case involved the withdrawal of an existing licence to serve alcoholic beverages in a restaurant. The European Court of Human Rights held that the withdrawal of the licence had an adverse effect on the goodwill of the restaurant business, run by the applicants, and was satisfied that the maintenance in force of the licence, to which the applicant claimed to be entitled, was one of the principal conditions for carrying on the business activities at the restaurant. The Court, accordingly, held that the dispute in question as to whether the withdrawal of the licence was lawful did concern a civil right of the applicant and that Article 6(1) was applicable - see paras. 43 and 44 of the judgment. Junior counsel then cited the case of Van de Hurk v Netherlands (1994) 18 E.H.R.R. 481. In that case the applicant was a dairy farmer. Under the scheme operated within the European Community for reducing surplus milk products, he was allocated a milk production quota. His claim for a higher quota was rejected, as was his subsequent appeal before the relevant authorities in his country. He complained that his right to a fair hearing by an independent and impartial tribunal under Article 6(1) of the Convention had been infringed. The European Court held, inter alia, that there had been a violation of Article 6.1 in that the applicant's civil rights and obligations had not been "determined" by a "tribunal" within the meaning of that provision. It is to be noted that, by the time the case came to the Court, it was not disputed that the case concerned the "determination of civil rights and obligations" so that Article 6 was engaged. - See para. 43 of the judgment, but junior counsel referred me to the Opinion of the Commission at paras. 34-37 of the report which is to the following effect:
"34. Article 6(1) extends only to disputes over 'civil rights and obligations' which can be said, at least on arguable grounds, to be recognised under domestic law. Such a dispute must be genuine and of a serious nature; it may relate not only to the actual existence of a right but also to its scope and the manner of its existence and, finally, the result of the proceedings concerning the dispute at issue must be directly decisive for such a right.
35. It is not contested that there was a 'dispute' concerning a 'right' since the allocation of both a milk-quota and an extra levy-free quota conferred a 'right' to the applicant to produce a determined quantity of milk, subject to the condition that a levy must be paid for any surplus.
36. The size of a milk-quota determines for each diary farmer the quantity of milk he is authorised to produce. It is therefore decisive for his income. The fact that in addition a milk-quota is transferable confers to it the character of, in the words the European Court of Human Rights, a 'pecuniary' right. Thus the allocation or refusal of a milk-quota may seriously affect a milk producers business activities. A dispute concerning the granting of a higher quota therefore involves the determination of civil rights and obligations within the meaning of Article 6(1) of the Convention."
Counsel invited me to apply those passages to the present case by analogy. In the present case the number of AWPs allowed might seriously affect the petitioners' business activities.
[16] The next Strasbourg authority referred to was Jacobsen v Sweden (1989) 13 E.H.R.R. 56. In that case the circumstances were that the applicant had been prohibited from building on, and dividing, his own property, as a result of an amendment to a building plan made by a municipal council in Sweden. He complained that Swedish law did not provide him with adequate access to a Court to challenge the lawfulness of the amendment and that he was deprived of any effective remedy. In doing so he invoked inter alia Article 6(1) of the Convention. In their judgment, the Court considered an argument put forward by the Swedish Government that there was no existing dispute over a "right". At para. 32 they said that "the Government also maintained that, in view of the wide discretion left by the Swedish Parliament to the administrative authorities in this area, there could not be any serious and genuine dispute as to the applicant's rights to build and divide his property before a building permit had been issued. It added that, as the rights claimed had in fact never been exercised, they were not relevant for the purposes of Article 6(1). In the circumstances the Court found it clear, however, that, subject to meeting the requirements laid down by the law the applicant could arguably have asserted that, by virtue of the provisions of the original plan, he had, inter alia, a right to build a second home on his property and to obtain the necessary permit. The Court continued:
"It is true that the decision to adopt the amendment to the plan involved the exercise of a certain discretion on the part of the competent authorities, but their discretion was not unfettered: they were bound by generally recognised legal and administrative principles."
At para. 34 the Court said:
"There can be no doubt that the applicant's disputed 'rights' to build on and to divide his property were 'civil rights' within the meaning of Article 6(1); this is confirmed by the Court's established case law. In the present case this finding is affected neither by the Government's argument that the planning decision itself was motivated mainly by considerations of public interest, or by the general character of the plan."
[18] The last authority referred to by junior counsel for the petitioners, in this chapter of his submissions was R (Alconbury Developments & Ors) v Secretary of State for the Environment, Transport and the Regions (2001) 2 WLR 1389 in which the United Kingdom procedures in respect of the grant of planning permission and compulsory purchase orders were considered in the light of Article 6 of the Convention. Counsel relied, in particular, on the speech of Lord Clyde in that case at paras. 145-150, pages 1432-1435. After a review of a number of decisions from the Strasbourg jurisprudence his Lordship said, at para. 150:
"It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a Court of law regarding the private rights of the citizen, provided that if directly affects civil rights and obligations and is of a genuine and serious nature. It applies then to the various exercises of discretion which are raised in the present appeal. But, while the scope of the article extends to cover such discretionary decisions, the particular character of such decisions cannot be disregarded. That particular factor has important consequences for the application of the article in such cases."
It is to be observed that none of the authorities cited, dealing with Article 6(1) of the Convention had anything to say about any duty to provide reason, either in written or any other form. Drawing, however, on the authorities, junior counsel for the petitioners posed the question "Is it fair that a body like the respondents should be entitled to make their decisions without giving any reasons?" The submission was developed further, as I understood it, to the effect that there was no good reason why such a body should not be obliged to give reasons for their decisions and such reasons should be given in written form which could, however, be brief. What appears to be desiderated, in particular, in this case, by the petitioners was a written statement as to what arguments which had been put forward at the hearing had been accepted, and which rejected, and if arguments were rejected what were the reasons for rejecting them. At this point, however, junior counsel for the petitioners' submissions began to merge into the next chapter of the petitioners' case which was the attack on the respondents' policy. The problem for the petitioners was that they simply were left in the dark, it was said, as to the respondents' basis for fixing an absolute cap of 37 AWP machines for any bingo club premises within their district. Since that remained a mystery it could not be said whether or not their decisions were lawfully made, in a proper exercise of their decision making powers. It had already been submitted that because of the fact that the respondents' membership of the body had recently been reconstituted, as a result of the local elections, it could not be said that they knew they were applying the policy and, if so, that they understood it. If, however, the Court did not favour that submission, then the material produced by the respondents explaining their policy, in particular 7/1 of process, while it contained matters which the petitioners could not deny were relevant to the exercise of powers under Section 32, having regard to the legislation as a whole, still left the impression that the fixing of an upper limit of 37 machines was arbitrary. It clearly was not linked to demand. There was no explanation given as to why the figure, which had apparently been fixed in 1993, had not been revised in the light of experience, particularly with regard to the new design and new arrangement of club facilities that existed at the present time, all of which factors had been put before the respondents by the petitioners' representative Mr Loudon in his submissions to them.
[19] Lastly, junior counsel for the petitioners drew my attention to 6/10 of process. That is a document emanating from the Gaming Board for Great Britain. The first page thereof is headed "Advice to Licensing Justices". Page 4 of the document has as its sub-heading "Licensing of Gaming Clubs (including Bingo Clubs)
Memorandum of advice under the Gaming Act 1968 for the 2003 Licensing Sessions". At para. 2 of page 4 it is then stated:
"Schedule 2 to the Gaming Act 1968 provides for the Gaming Board to give advice to licensing authorities who are considering applications for licences under the Act. The particular matters mentioned in the schedule in this connection are the extent of the demand on the part of the prospective players for gaming facilities of any particular kind and the extent to which, and the places in which, gaming facilities of any particular kind are available (paragraphs 19 and 21(4)), the suitability of the relevant premises (paragraph 20(2)), and restrictions to be attached to licences (paragraph 25(5))."
The statutory provisions referred to in that paragraph direct licensing authorities to take into account the advice given by the Gaming Board in relation to the matters specified therein. So, for example, in para. 19(2) of Schedule 2 it is provided that in determining whether on an application for the grant of a licence under the Act, that the application should be refused because it is not shown that a substantial demand exists for gaming facilities of the kind proposed to be provided on the relevant premises, licensing authorities are directed to take into account any advice given by the Gaming Board to it, from time to time, as to the extent of the demand on the part of prospective players for gaming facilities of any particular kind, either generally in Great Britain or in any particular part of Great Britain, and as to the extent to which, and the places in which, gaming facilities of any particular kind are available. In paragraph 4 of page 4 of the document 6/10 of process it is stated as follows:
"The second part of this memorandum, paragraphs 42-71, relates to matters which are not strictly ones upon which the Board is empowered to give advice. They are included in the belief that the authorities will find the Board's views helpful. It should be emphasised, however, that, while it is the Board's wish that these other parts of the memorandum should also be available to licensing authorities, there is no obligation to take this further guidance into account in reaching decisions on licensing matters."
My attention was drawn to paragraphs 68-70 of the document which deal specifically with the matter of authorisation of machines under Section 32 of the Act in bingo clubs. These paragraphs are in the following terms:
"68. The Deregulation (Bingo and other Gaming) Order 2002 came into force on 29 March 2002. Article 3 of the Order added a new Section 32(3) which permits bingo clubs to install up to 4 club (jackpot) machines with a maximum stake of 50p and a maximum prize of £500 by virtue of the grant of the licence, in addition to being able to apply to their licensing authority for approval to install a number of Section 34 AWP machines. Licensing authorities will still wish to consider carefully those applications in which directions are sought for large numbers of AWP machines. In the Board's view, there is a risk of altering the nature of the bingo club towards that of an amusement arcade, and this view is lent weight by the recent trend to install crane machines and pusher machines alongside the conventional reel-type AWPs. This is a particular cause for concern where the machines are situated where they may be seen by members of the public e.g. in entrance foyers. The siting of a large number of machines in bingo clubs is a practice which the Board continues to watch carefully; it is not easy to reconcile it with the traditional social nature of such clubs.
69. A decision on the number of AWP machines which should be authorised is one for the licensing authorities, having regard to the local circumstances; however, the Board suggest that account should be taken of the space available for the number of machines requested, the suitability of the proposed location, and the likely utilisation in the light of the pattern of attendance at the premises. This last consideration may be especially important if a club's opening hours (when the machines may be played), are to be extended beyond the hours permitted for bingo.
70. Sufficient space should be allowed to permit the free circulation between the player at the machine and any other obstruction. The machines must not be accessible to members of the public and should not create a safety problem in the event of fire. Bearing in mind the effect that the authorisation of a significant number of Section 34 machines could have on the character of licensed premises, the licensing authority may wish to consider making a visit to the premises before coming to a decision. Licensing authorities may wish to continue to enquire of applicants whether they intend to install the full number of machines specified in their applications." (My emphasis).
The Respondents' submissions
[21] In reply, junior counsel for the respondents invited me to dismiss the petition by sustaining the respondents' second plea-in-law. In the first place she invited me to hold that there was no substance in the petitioners' argument, which turned on the submission that the respondents were a different body from the body that had existed prior to the 2003 local elections, and which had previously adopted and applied the relevant policy. Quite apart from the legal position in relation to such bodies, it could not even be contended that, as a matter of fact, the composition of the respondents was totally different from its composition prior to the elections. Under reference to the membership of the respondents, as recorded in the transcript of the proceedings, and the membership of the respondents as evidenced by documents relating to its immediately previous membership, it could be seen that the majority of the members remained the same after the elections. The chairman had been the previous vice-chairman. The Court could, and should, assume continuity of, and understanding of, the relevant policy on the part of the respondents. The clerk to the respondents was the clerk at the inception of the policy and remained as clerk to this day. As far as the position in law of the respondents pre- and post-elections was concerned that was governed by the provisions of the Licensing Act 1976, Section 1(1) and (8) which were applied to the operations of the Gaming Act by virtue of Section 133 of the Licensing Act. The effect of the local government elections was not to remove the continuity of the Board. There was no need for the freshly constituted Board to adopt, afresh, the previous policies. Those policies were presumed to have continued until they were changed and any such change was made public. Moreover, and in any event, the respondents had, over the years, reviewed their policy since its inception in 1993. The most recent review had taken place on 12 September 2003. I was referred to two sets of agenda of the respondents dated 29 August 2003 and 12 September 2003, numbers 7/1 and 7/2 of process which showed that the respondents had had placed before them the detail of, and reasons for, the policy at that time for their reconsideration. Counsel also drew my attention to 7/3 of process. That is the transcript of a meeting of the respondents on 21 June 2002. It discloses that, on that occasion, the respondents' solicitor, Mr Loudon, made representations regarding the 37 upper limit on the number of AWP machines. The transcript, at page 11 records the respondents' clerk saying to Mr Loudon, "I am sure you are aware of the policy of the Board in relation to AWP machines." Mr Loudon is recorded as replying, "I am indeed". The clerk went on to say as follows.
"The policy ... in relation to the Section 32 direction states that in order to preserve the atmosphere of the club and the club atmosphere within the premises, to restrict the number of machines, and the formula which has been applied to date is that a standard number of 20 machines are allocated for any number of up to 1000 occupants, 2 machines for every 100 beyond that up to a maximum of 37."
That demonstrated, it was submitted, that the petitioners, through their own representative, were perfectly aware of the respondents' policy and what lay behind it. What Mr Loudon, for the petitioners, was arguing for, both in 2002 and in 2003, was that the respondents should abandon their policy because it was contended that there was demand in certain of the petitioners' bingo clubs for more than 37 machines. Junior counsel for the respondents submitted that, in the exercise of their power under Section 32, the respondents were not obliged to consider demand, and did not consider it as the criterion for fixing the maximum number of machines. It was perfectly legitimate for the petitioners to seek to have the respondents alter their policy but a refusal by the respondents to do so, after having considered that request, did not make the refusal irrational.
[22] The expressed rationale for the respondents' policy, namely that it was designed to ensure the maintenance of the social club character of the premises and to ensure that the safety and convenience of members were safeguarded, was not in conflict with the purpose of the legislation, nor did it appear that the petitioners were suggesting to the contrary. The narrower attack by the petitioners appeared to be that they did not appear to understand why the figure of 37 had been settled upon. But that complaint or criticism was misguided. If the respondents, in seeking to achieve the legitimate purpose of maintaining the social club atmosphere of the premises, and safeguarding safety and convenience of the members, adopted a policy which put an absolute upper limit to the number of AWP machines, albeit by reference to the seating capacity of the premises in question, that was an entirely legitimate exercise of their discretion under Section 32. If they chose to develop a technique, or apply a formula, which promoted a rationale that was consistent with the policy of the Act, and certainly did not frustrate it, then that was within the discretion of the respondents. The fixing of an upper limit of AWPs to be allowed in any case was a qualitative decision by the respondents which was well within their discretion and certainly could not be branded as irrational.[23] Senior counsel referred me to the case of Caledonian Nightclubs v Glasgow District Licensing Board 1996 S.C. (H.L.) 29. That case involved the refusal by the respondents of an application for the provisional grant of a new entertainment licence in respect of proposed premises in the centre of Glasgow for "a high class nightclub providing dancing on two floors with restaurant and associated bar". Section 17(1)(b) of the Licensing (Scotland) Act 1976 provides:
"A licensing board shall refuse an application of the type described in sub-sec (2) below if it finds that one or more of the following grounds for refusal, being competent grounds, applies to it ... (d) that having regard to - (i) the number of licensed premises in the locality at the time of the application is considered; and (ii) the number of premises in respect of which the provisional grant of a new licence is in force, the Board is satisfied that the grant of the application would result in the over provision of licensed premises in the locality, and otherwise shall grant the application."
The police had advised the respondents that within 200m of the premises in question there were 14 other licensed premises, one of which was a provisional grant. The reason given for the refusal of the application was that of over provision under Section 17(1)(d). One of the grounds of appeal against the respondents' decision was that they were wrong to accept that 200m constituted the locality in terms of Section 17(d)(1) and that instead they should have accepted the true locality as being the centre of Glasgow. The House of Lords rejected this criticism of the respondents' approach. Lord Jauncey, in his speech at page 34, referred to a previous decision of the Inner House in the case Lazerdale Limited v City of Glasgow Licensing Board, where the Court had held that the respondents were entitled to take an area within a radius of 200m of premises in Bath Street as the appropriate locality for the purposes of Section 17(1)(d). His Lordship then said this:
"Determination of the appropriate locality for the purpose of sec 17(1)(d) must be a matter peculiarly within the experience and expertise of licensing boards with their local knowledge and I have no doubt that the Lazerdale case was properly decided and that the Board cannot be criticised for adopting the 200m radius."
That reasoning, it was submitted, could be applied, by analogy, to the present case. It was a matter peculiarly for the judgment of the respondents, in an exercise of their powers under Section 32, to choose a particular formula for the purpose of fixing a maximum figure for the number of AWPs in any case, in order to seek to ensure the continued existence of the social character of bingo clubs. It was not for the Court to question that judgment.
[24] Junior counsel for the respondents then developed further her submission regarding the legitimacy of the respondents' policy. She did so, in the first place, by referring to the decision of Lord Weir in the case of Elder v Ross and Cromarty District Licensing Board 1990 S.L.T. 307. The decision in that case arose in the context of a refusal of an application by the holder of a hotel licence for a regular extension of permitted hours under the Licensing (Scotland) Act 1976. In refusing to grant the application, the licensing board in question had applied a policy which they had adopted in relation to such matters. At page 311 I-L of his Opinion Lord Weir was to the following effect:
"It is necessary ... to examine the case law in order to ascertain the extent to which a body entrusted with a statutory power or discretion may evolve and apply a policy in making its decisions ... the law on this question has been developed in a number of English cases and I am satisfied from a study of references in several cases decided in our Court that the law of Scotland is no different. The principles which are established, in my opinion, may be summarised in this way. Where a statutory body having discretionary power is requested to consider numerous applications there is no objection to it announcing that it proposes to follow a certain general policy in examining such applications. Indeed, in certain circumstances, it may be desirable to achieve a degree of consistency in dealing with applications of similar character. Moreover, there is nothing wrong with policies being made public so that applicants may know what to expect. However, such a declared policy may be objectionable if certain conditions are not fulfilled. A policy must be based on grounds which relate to and are not inconsistent with or destructive of the purposes of the statutory provisions under which the discretion is operated. Moreover the policy must not be so rigidly formulated so that, if applied, the statutory body is thereby disabled from exercising the discretion entrusted to it. Finally, the individual circumstances of each application must be considered in each case whatever the policy may be. It is not permissible for a body exercising a statutory discretion to refuse to apply its mind to that application on account of an apparent conflict with policy."
None of the conditions which Lord Weir enumerated in that passage had been breached by the respondents in the present case, it was submitted. In particular the petitioners could not argue that the policy frustrated the purpose of the legislation in question. Junior counsel then referred me to the speech of Lord Reid in the case of British Oxygen Co v Board of Trade (1971) AC 610. That case was concerned with a statutory provision which conferred a discretion on the minister to make certain grants to certain persons. Having reviewed the legislation, in question, Lord Reid, at page 624, concluded that the legislation in question did not confer on any person the right to get a grant. The ministers' discretion on the matter was unqualified. His Lordship then observed:
"There are two general grounds on which the exercise of an unqualified discretion can be attacked. It must not be exercised in bad faith and it must not be so unreasonably exercised as to show that there cannot have been any real or genuine exercise of the discretion. But apart from that, if the minister thinks that policy or good administration requires the operation of some limiting rule, I find nothing to stop him."
Later at page 625 his Lordship said this:
"The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' ... I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, providing the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing. In the present case the respondents' officers have carefully considered all that the appellants have had to say and I have no doubt they will continue to do so. The respondent might at any time change his mind and therefore I think that the appellants are entitled to have a decision whether these cylinders are eligible for grant."
Junior counsel invited me to apply those dicta to the circumstances of the present case. She also referred me to the case of Gala Leisure discussed above, and what Lord McCluskey had to say in relation to the respondents' policy and its application at page 21.
[25] Reference was then made to the case of Mecca Leisure Limited v City of Glasgow Licensing Board 1987 S.L.T. 483. That case dealt with the refusal of the respondents to make any direction, at all, under Section 32. That decision was attacked in a petition for judicial review. Lord Clyde at page 485G-H noted that the petitioners' grounds of attack were that "the exercise of the discretion was unreasonable and there was no proper basis in fact on the evidence before the respondents to support the decision." His Lordship narrated certain averments of the respondents in answer, which were to the following effect:
"Explained and averred that the petitioners' application was for a direction for the maximum number of 25 amusement with prizes machines. In arriving at their decision on the said application the respondents considered the effect of granting a direction under Section 32 of the said Act on the said Mecca bingo and social club known as The Orient. The respondents considered that such clubs are essentially social clubs and that the social aspect of such clubs is lost when, as in the case of The Orient proposal, members have the opportunity of playing a substantial number of machines before and after the bingo game and during the interval. In coming to its decision, the respondents had regard to the memorandum of advice issued for 1985 by the Gaming Board for Great Britain, in particular paragraph 17, its own experience in visiting a bingo club in Liverpool which had a large number of amusements with prize machines, the number of machines applied for and its assessment of the effect of The Orient club of the introduction of amusement with prize machines in pursuance of the direction sought under Section 32(1) of the said Act. The respondents exercised their discretion reasonably in the circumstances."
While Lord Clyde had observed at page 485F that there was no statutory requirement on the respondents to give reasons for their decision not to grant the direction under Section 32, he considered that he had to treat the averments, just quoted, as fairly reflecting the grounds on which the respondents' decision was based. In considering these grounds his Lordship at page 486A-B said as follows:
"It seems to me that essentially the reason for the refusal was that the allowance of 25 AWPs would lead to a loss of the social character of The Orient. It was not disputed that bingo clubs such as The Orient are of the character of social clubs. It was accepted by counsel for the petitioners that it was relevant and proper for the board to consider whether the social character of the club would be affected if the request for the direction was granted. That such may exist as a matter of fact was supported by the memorandum of advice, if not by the respondents' own knowledge and experience. That the risk would become a reality in the circumstances of the present case was a matter of inference which they were entitled to draw from their knowledge of the circumstances and of the proposals and, in particular, from the fact of the number of machines intended to be installed at The Orient. It is not for me to say whether that inference was correct or not, but I cannot say that it was an inference which no authority could reasonably draw and I am not persuaded that there was no factual basis for their decision. In the whole circumstances, I do not consider that a case for reducing this decision has been made out."
Junior counsel for the respondents relied on Lord Clyde's decision in that case particularly as explicit support for the legitimacy of the purpose or aim of the respondents' policy in seeking to retain the social club character of bingo clubs. In the present case, just as in the case just discussed, the respondents had taken account of the Gaming Board advice on the matter contained in 6/10 of process, in particular paragraph 68 thereof in seeking to achieve the purpose they did, though they were not bound to do so. The decision of Lord Clyde in the last cited case, was also authority for the proposition that the respondents had a very broad discretion under Section 32 and, indeed, were not bound to make any direction at all. If they chose to make a direction then they were bound to specify a maximum AWPs. The setting of a particular upper limit, to be applied in all cases, was in pursuance of a legitimate policy objective having regard to the legislation and the setting of that limit was within the respondents' jurisdiction and competence.
[26] For the petitioners to complain that they did not know why the maximum figure was set at 37, it was submitted, did not demonstrate that the respondents had acted irrationally. The fixing of a maximum upper limit to be applied as a matter of policy was perfectly reasonable and where that limit should be fixed was a matter entirely for the respondents. The position was directly analogous to the position of the respondents in fixing the boundaries of what constituted "locality" as was discussed in the Caledonian Nightclubs case. The effect of the statutory provisions in Section 32, were that if a direction was to be given, the respondents must fix a maximum. There was nothing irrational in what the defenders had done in either formulating their policy or applying it in the instant case. Such a criticism was ill-founded having regard to the previous decisions of this Court in the cases of Gala Leisure and Mecca Leisure Limited discussed above.[27] Junior counsel for the respondents then proceeded to make submissions in relation to averments of the petitioners in statement of fact 3 which are to the following effect:
"The respondents are called upon to aver what consultation, if any, took place between the respondents and any bingo operators prior to the adoption of said policy and to aver where, when and how the policy was made known to the petitioners or any other applicant for a bingo licence."
In the event, however, the petitioners did not, as I have noted them, make any case based on any lack of consultation prior to the adoption of the policy or lack of communication of the policy to the petitioners or other applicants for bingo licences. I, accordingly, do not require to deal with those averments as supporting any separate basis of attack on the respondents' decisions or policy. Suffice it is for me to say that I accepted the respondents' submissions that in the circumstances there was no duty upon the respondents to consult before formulating their policy and that, in the circumstances, the petitioners and indeed other operators were perfectly aware of what the respondents' policy was.
[28] Junior counsel for the respondents made submissions in relation to the complaint of the petitioners based on the alleged absence of reasons provided by the respondents. This chapter of the petitioners' case was addressed, in the first place, under reference to purely domestic law. It was submitted that the position on domestic law remains, even to this day, that in relation to the exercise of administrative discretion there was no general duty to give reasons which arose in every case. There was, in particular, no example of a case dealing with the particular kind of discretionary power conferred under Section 32 where a duty to give reasons for its exercise one way or another was imposed. Junior counsel referred, in particular, to the speech of Lord Clyde in Stefan at pages 1297-1298 where his Lordship reaffirmed the continuing absence of a general duty to give reasons and where it was stressed that where there is no express duty to give reasons contained in the relevant statutory provisions the Court approaches matters, on a case by case basis, to determine whether, in the particular circumstances, there is any implied obligation to do so. In the Stefan case itself the Privy Council concluded that there was such an obligation implied because in that case (a) there was a right of appeal from the decision, (b) the decision making body had a judicial character and (c) the importance of the decision to the individual supported such an obligation. It was said, on behalf of the respondents, that none of the foregoing factors arose in the present case. There was available only a restricted right to the petitioners to challenge the decision by way of judicial review. In Reg. v Secretary of State for Trade & Industry ex parte Lonrho plc (1989) 1 W.L.R. 525 Lord Keith of Kinkel said:
"The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for suggesting irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision maker, who has given no reasons, cannot complain if the Court draws the inference that he had no rationale reasons for his decision."
In the present case there was no duty expressly imposed by the statutory provisions to give reasons. The petitioners did not contend, nor could they contend, that such a duty was implied by the statute itself and by reason of the nature of the discretion being exercised under Section 32. Nor was the petitioners' submission that the facts and circumstances pointed overwhelmingly to a different decision. All of that being so, then applying the dictum of Lord Keith in Lonrho the absence of reasons did not render the respondents' decision subject to attack as being irrational in an administrative law sense.
[29] Junior counsel for the respondents then turned to address the submissions made on behalf of the petitioners in relation to Article 6 of the ECHR. Her basic position was that the petitioners' case was fundamentally misconceived insofar as it asserted that Article 6(1) of the Convention was engaged, at all, in the circumstances. That was because the petitioners could point to no right which was relevant for the purposes of Article 6(1). They had no entitlement, or even an expectation, to be allowed to operate more AWPs at their premises than the maximum stated in the respondents' policy. In the absence of any such entitlement, or at least expectation, there was no engagement or determination of the petitioners' civil rights in any relevant sense for the purpose of the Convention when the respondents dealt with their applications for a direction under Section 32. The statute did not confer any entitlement on the petitioner to operate the number of AWPs which they wished to operate, for example, if certain criteria were met. Counsel referred me to the case of Masson & Van Zon v Netherlands (1996) 22 EHRR 491. In that case two Dutch persons were acquitted by the Netherlands Courts of certain criminal offences. They brought domestic legal proceedings for recovery of their legal, travel and subsistence costs in connection with the criminal proceedings that had been taken against them and for compensation for their loss of liberty while in police custody. Under Dutch domestic law, a former suspect could choose to bring proceedings for such recoveries in the civil courts, in which case they had to prove that their detention was unlawful and constituted a tort or they could bring proceedings in the criminal courts in which case they might ask the court to grant them compensation under equitable principles. The applicants brought proceedings in the criminal courts for compensation. Their claims, save for some minor exceptions, were rejected by the Dutch Court. They complained that their applications had not been dealt with fairly and, in particular, by an impartial tribunal and they alleged violations of Article 6(1) and 13 of the Convention. The Court at para. 48-52 of its decision, set out the relevant principles to be applied in the case. In the first place they said (at para. 48) that in deciding whether a "dispute" over a "right" existed so as to attract the application of Article 6(1), it was necessary for the Court to address the issue as to whether a right to the compensation claimed could arguably be said to be recognised under national law. At para. 49 the Court said:
"In this connection, in deciding whether a 'right', civil or otherwise, could arguably be said to be recognised by Netherlands law, the Court must have regard to the wording of the relevant legal provisions and to the way in which those provisions are interpreted by the domestic courts."
Having regard to the relevant legislative provisions in that case, which provided that the Court "may" award compensation when it was of the opinion "that reasons in equity" existed therefor, the European Court concluded, at para. 51, that "the grant to a public authority of such a measure of discretion indicates that no actual right is recognised in law". The Court, at para. 52, therefore concluded that:
"Whether or not the impugned proceedings involved 'a dispute' for the purposes of Article 6, para. 1 (art. 6/1), the claims asserted by the applicants did not in any event concern a 'right' which could arguably be said to be recognised under the law of the Netherlands. This being so, Article 6, para. 1 (art. 6/1) of the Convention was not applicable to the impugned proceedings and has therefore not been violated in relation to either applicant."
The control of gaming activities in United Kingdom law, under the relevant legislation passed by Parliament, was, it was said, a lawful and valid democratic exercise. In this situation there was no "right" in the petitioners to operate as many AWPs in their premises as they wished. Reference was then made to the recent decision of the House of Lords in the case Matthews v Ministry of Defence (2003) 1 AC 1163. In that case the claimant, who was a serviceman, sought damages for personal injuries from the Ministry of Defence for injuries sustained while he was doing his service in the Navy. The Ministry defended the claim by relying on Section 10 of the Crown Proceedings Act 1947 which exempted the Crown from liability in tort for injury sustained by someone in the claimant's position. The claimant contended that Section 10 was incompatible with the right to a fair trial under Article 6(1) of the Convention in that it unjustifiably deprived him of his civil rights to sue. The House of Lords rejected the claimant's contentions. Lord Bingham at page 1168 said:
"There is much common ground between the approaches of the parties to this question. It is recognised, first, that the expression 'civil rights' in Article 6 of the Convention is autonomous: König v Federal Republic of Germany (1978) 2 EHRR 170, 192-193, para. 88. This means that the concept of a 'civil right' cannot be interpreted solely by reference to the domestic law of the member state. It is the view taken of an alleged right for Convention purposes which matters. But, secondly, the Strasbourg case law is emphatic that Article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular content for civil rights in any member state: see for example Z v United Kingdom (2001) 34 E.H.R.R. 97, 134-135, 137, paras. 87, 98. Thus for the purposes of Article 6(1) one must take domestic law as one finds it, and apply to it the autonomous Convention concept of civil rights. It is said, that the Strasbourg jurisprudence has distinguished between provisions of domestic law which altogether preclude the bringing of an effective claim (as in Powell & Raynor v The United Kingdom (1990) 12 EHRR 355; Z v The United Kingdom (2001) 34 E.H.R.R. 97) and provisions of domestic law which impose a procedural bar on the enforcement of a claim ... An accurate analysis of a claimant's substantive rights in domestic law nonetheless is the first essential step towards deciding whether he has, for the purposes of the autonomous meaning given to the expression by the Convention, a 'civil right' such as will engage the guarantee in Article 6(1)."
At page 1183, para. 51 of his speech in the same case Lord Hope said this:
"Article 6(1) does not have anything to say about the content of the individual's civil rights, nor does it impose an obligation on the state party to confer any particular rights in substantive law on the individual."
The petitioners, in the present case, could not rely on Article 6(1) to establish the breach of a right that domestic law itself did not confer. In the case of Runa Begum v Tower Hamlets LBC (2003) 2 WLR 388, the distinction could be seen to be drawn by the House of Lords between the question of whether a civil right was engaged at all and the protection which Article 6 provides for the examination of civil rights. Reference was made to the speech in that case of Lord Bingham at page 391-392, the speech of Lord Hoffman at page 407 and the speech of Lord Millett at page 417. In the last mentioned case Lord Walker of Gestingthorpe at page 419, after referring to certain Strasbourg authorities said:
"These indicate that Article 6(1) is likely to be engaged when the applicant has public law rights which are of a personal and economic nature and do not involve any measure of official discretion): see Masson v The Netherlands (1995) 22 E.H.R.R. 491, 511, para. 50." (My emphasis).
The fact that the exercise of a discretion might be challenged in judicial review, in certain circumstances, in domestic procedure, did not mean that there was necessarily a civil right engaged for the purposes of Article 6. I was, for these reasons, invited to reach the conclusion that Article 6 had no application to the present case.
[30] If, on the other hand, and contrary to the submissions just noted, I was to take the view that Article 6 was engaged, it was submitted by junior counsel, that the question remained as to whether there was, because of the requirements of Article 6, a duty on the respondents to provide reasons, which duty they had breached in the circumstances. The petitioners had cited no authority emanating from the European Court of Human Rights where a failure to give reasons by an administrative body carrying out an administrative function had been held to amount to a breach of Article 6. Article 6 was concerned ultimately with whether standards of fairness had been applied in the determination of civil rights disputes. My attention was drawn to a decision of the European Commission on the admissibility of an application to the Court by Charleen Webb (application number 33186/96). In that case the applicant complained that a trial, in which she was convicted of certain offences, had been unfair. She also argued that the Privy Council, in refusing to give her leave to appeal against the decision of the Court of Appeal in Bermuda, where the trial in question had taken place, had failed to give reasons for its refusal and this, in itself, constituted a contravention of Article 6(1). The Commission rejected the complaint saying that there was no unfairness amounting to a violation of Article 6(1). Junior counsel for the respondents said that this demonstrated that the Strasbourg jurisprudence did not impose an absolute duty, even in cases of decisions of judicial bodies, to provide reasons for their decisions. In any event, in the present case, it was submitted Article 6 could be said to add nothing to the domestic law requirements, if any, regarding the giving of reasons in a case like the present. For all these reasons, the petition should be dismissed.
Senior counsel for the Petitioners' submissions
[31] In reply senior counsel for the petitioners adopted his junior's submissions. He focused, at the outset of his own submissions, on what he described as the "conduct of the hearing of the applications by the respondents". The backdrop to that was that certain principles fell to be recognised. The first was that each application under Section 32 to the respondents must be determined on its own merits. The second was that, nevertheless, the respondents were entitled to adopt and apply a policy in relation to such applications. The third was that any such policy must be applied with due regard to the particular circumstances of the application. The fourth was that any such policy must be applied in such a way as to demonstrate that the respondents had exercised their discretion reasonably. Proper effect could only be given to those principles if the respondents gave proper consideration to all the material placed before them. While senior counsel was prepared to accept that the petitioners' representative's state of knowledge of the respondents' policy was, as could be seen from what was recorded in the transcript of the hearing, perfectly clear, the point was that he was asking the respondents to look at matters afresh and was giving reasons for them to do so, yet no one came back to him later and indicated the reason for the actual decisions which the respondents, in due course, reached. Junior counsel for the respondents had, in her submissions, said that the respondents might consider the question of demand when determining the maximum figure under Section 32 but might not do so. At other times, she seemed to say that the respondents did not require to look at demand and did not. But the position was that Mr Loudon had put before the respondents a number of relevant considerations, including not only the question of demand, to persuade them to take a fresh approach. They should have taken these matters into account and it, at least, appeared that they did not. At the very least the petitioners were left in the dark as to what weight, if any, were given to these factors. The absence of reasons prevented the Court and the petitioners from being able to determine if there had been a proper exercise of discretion.[32] Senior counsel for the respondents referred to the letters from the petitioners' representative Mr Loudon to the respondents' clerk, dated 23 June and 17 July 2003, numbers 6/4 and 6/5 of process, in which Mr Loudon asked for written reasons for the respondents' decisions. It is a reference to the 1968 Act. The respondents' clerk's response to those letters is, as has been seen, in 6/6 of process, a fax message dated 18 July 2003 and addressed to Mr Loudon the terms of which I have narrated above. Senior counsel for the petitioners contended that the content of the clerk's fax message was sufficient to enable the petitioners to attack the exercise of the respondents' discretion as having been unreasonable since there was nothing in it indicating that the respondents had considered Mr Loudon's submissions before them "properly", if at all, and consequently the petitioners were left completely in the dark as to what weight, if any, was given to the factors placed before the respondents by Mr Loudon in his submissions, when he presented his arguments for a higher maximum number of AWPs. It was senior counsel's submission that any method adopted by the respondents to achieve their policy must not result in the respondents totally fettering their discretion under Section 32. The position, in the present case, could be distinguished from that in the Caledonian Nightclub case, because in that latter case, the respondents were presented with two different and competing definitions of what should be regarded as the relevant "locality". It was clearly a matter for them to decide which one to favour. Reference was made by senior counsel to Lord Reid's remarks in the British Oxygen case that the decision maker should be open minded and be willing to change his mind. There was no evidence that the respondents, in the present case, had lived up to that requirement.
[33] Senior counsel for the petitioners then sought to distinguish the case of Gala Leisure from the present case, on the following grounds. In the first place there was no attempt in Gala Leisure, on the part of the petitioners, to attack the policy, as such. Moreover Lord McCluskey's decision in that case was four years old. No reliance was placed on that case by the petitioners on the European Convention on Human Rights. Senior counsel referred to the passage in Lord McCluskey's decision at page 21, column 2 where his Lordship said:
"Even in the absence of written reasons, the onus rests upon the petitioners to satisfy the Court that the decision criticised is plainly irrational or perverse. I have been unable to detect any material which warrants the inference that the Board took into account some irrelevant considerations. None has been specified or mentioned in argument before me. I am unable to conclude that the Board left out of account any relevant consideration: again there is no material whatsoever to warrant such a conclusion. In the absence of any such material the only test that I can apply is the test of irrationality. I find no sound basis for holding that the petitioners have discharged their onus in that regard."
Senior counsel for the petitioners submitted that, in the present case, it did appear that the respondents had left out of account relevant considerations i.e. the factors referred to in Mr Loudon's submission. The conduct of the respondents in the present case demonstrated that they had exercised their discretion unreasonably.
[34] Turning to the law in relation to the provision of reasons, senior counsel referred me to what is said on this topic at para. 18.52 and following in Clyde & Edwards on Judicial Review. The position, it was said, could be summarised as follows.
1. While there was no general right to have reasons given for decisions, the scope of that principle had been eroded to the extent that situations where there was no obligation to give reasons were the exception rather than the norm.
2. There was now no fundamental distinction to be drawn, in this area, between administrative and judicial decisions.
3. Policy argued for more openness in decision making and that was likely to be developed further due to the incorporation of Article 6 of the European Convention on Human Rights into domestic law. In the present case, it was contended, that, having regard to the content of the transcript of the hearing before the respondents reasons were required "to enable the petitioners to see if a colourable case for judicial review could be made out". The absence of any right of appeal, moreover, was persuasive of a duty to give reasons. The question ultimately was, it was accepted, one of fairness and that, it was said, must involve a comparison between the interests of the party seeking to be given reasons and the interests of the decision maker. There was no discernible disadvantage to the respondent in requiring them to give reasons. To require the decision maker to do so encouraged him to apply properly his mind to the issue before him - the quality of decision making is thereby enhanced. In a case like the present, where the decision in question could have an effect on commercial operators, the provision of reasons allows the affected party to consider the options either to change his operations (perhaps by moving elsewhere) or to comply with the policy. Senior counsel pointed out that the policy, in fixing the maximum figure of AWPs at 37 seemed to be internally inconsistent in that the formula operated otherwise on the basis of multiples of 2. It was practicable for the respondents to give reasons. The respondents had an experienced clerk to assist them in providing suitable reasons.
[35] Senior counsel for the petitioners went on to submit what while his main submission regarding the requirement to give reasons relied, in the present case on domestic law, that requirement was fortified now by virtue of the provisions of Article 6(1) of the Convention. I have to say that it appeared to me that, ultimately, the reliance placed on Article 6 was somewhat lightly advanced by senior counsel, recognising, as I think he did, the difficulties which counsel for the respondent had pointed out under reference to authority, in advancing an argument that Section 32 might involve the breach, or possible breach, of civil rights. His submission, in that respect, as I understood him, was to say that once a bingo club licence was obtained then the holder had the right to seek a direction and if he successfully obtained that direction he had a right to operate a certain number of machines up to a maximum. That, it seemed to be contended, might be sufficient to engage Article 6.
Senior Counsel for the Respondents' submission
[36] In reply senior counsel for the respondents adopted the submissions made by his learned junior. His contention was that there was no duty, express or implied, arising from the relevant statutory provisions in this case imposed upon the respondents to give reasons. Without conceding that there might, nevertheless, be a duty implied in the circumstances, by virtue of the common law, senior counsel contended that the petitioners' alleged grievance in this respect was, in any event, without substance. They knew the reason for the decision. It was an application of the respondents' known policy. They knew what that policy was. The exchanges between Mr Loudon and the members of the Board, as evidenced in the transcript, demonstrated this. The question had to be asked why was it that the petitioners' view of what the maximum figure for AWPs should be was any better or more rational than the respondents' 37. The material before the Court demonstrated that the respondents' policy was not irrational in the sense of being without a reason and that material also demonstrated that the respondents did not have completely closed minds on the matter. Senior counsel drew my attention, for example, to the transcript of the meeting of 20 June 2003 where the respondents' chairman is there recorded as saying:
"Mr Loudon, it seems to me that you haven't presented us with a tremendous argument in terms of unmet demand and that is something which, albeit the last Board in reconsidering the policy decisions visiting a number of premises operating as bingo clubs in Glasgow found no evidence per se in terms of unmet demand reflected in huge queues or otherwise in terms of AWP machines. Do you have anything you want to say to us on that angle rather than in relation to number of seats?" (See page 15 to 16 of the transcript.)
That passage demonstrated that the respondents did review their policy from time to time by, among other things, visiting club premises. Moreover 7/2 of process demonstrated that the policy continued to be the subject of review by the respondents. That was not demonstrative of closed minds on the matter. The respondents had taken into account the Gaming Board's advice on the topic, though they were not bound by statute to do so, and there was nothing in that advice which was inconsistent with the rationale for the Board's policy and the policy itself as set out in 7/2 of process. The petitioners were unable to dispute that it was legitimate for the respondents to adopt a policy in relation to the exercise of the Section 32 discretion which had as its purpose the maintenance of the social club atmosphere of bingo clubs and the safeguarding of the safety and convenience of their patrons. The fact that it might be possible for some other body to formulate a different policy to achieve that objective did not render the policy and decision made under it irrational. There was no place for Article 6 of the Convention being engaged because Section 32 was not concerned with civil rights created in domestic law but only the right to request a discretionary benefit. Looking at the matter broadly what occurred was that the petitioners were given an opportunity to present their argument in favour of a change of policy, by the respondents, or, at least, a relaxation in its exercise in respect of the petitioners' applications. Mr Loudon made full use of that opportunity in full knowledge of the existing policy. He simply failed to persuade the respondents with his arguments. None of that entitled the Court to stigmatise the decisions in question as irrational. The motion to dismiss the petition was renewed.
Decision
[37] As has been seen, I was favoured, in this case, with a very full discussion of the points made by the petitioners in their petition, with full reference to authority. The starting point, however, in my opinion, is to consider carefully, and not lose sight of, what Section 32 of the 1968 Act does, and with what it is concerned. Section 32 finds its place in legislation dealing with a controlled or regulated activity i.e. gaming. By Section 31(2) of the Act Parliament has provided that the maximum number of AWPs which may be available in the case of bingo club premises is four. That limit is, of course, subject to the provisions of Section 32 but it will be seen that Parliament, in fixing the maximum level at four, was setting the limit at a very low level indeed and it is difficult to discern from that any policy or intention of Parliament that the number of AWPs in bingo clubs should be a matter influenced by customer or commercial demand. Section 32 provides for the possibility of an adjustment of that maximum figure by way of a direction made by the licensing authority when they have been asked to grant or renew a bingo hall licence. The licensing authority's discretion in this respect is expressed in unqualified terms. The section, in my view, can, on no reading of it, be seen to amount to conveying to any bingo hall licence holder an expectation, far less a right, to have any more than four AWPs in his bingo hall. It will be recalled that in the case of Mecca Leisure Limited v City of Glasgow Licensing Board 1987 S.L.T. 483, Lord Clyde considered that a refusal by the respondent to give a direction for 25 machines, when the legislation provided that the maximum number of machines should be two, and not four as presently provided for, unless there was a direction under Section 32, was not an irrational exercise of the respondents' discretion under the Section. His Lordship accepted that the refusal based simply on a wish or aim by the respondents to preserve the social character of the club was not irrational.[38] The respondents' attitude to the matter has clearly adapted significantly over the years since the position they adopted, and which was upheld, in that case past-mentioned. That position is now embodied in the policy which is set out in number 7/1 of process and, as has been seen, allows for a maximum figure of 37 AWPs depending on the occupancy capacity of the premises in question. That policy may well have evolved, to some extent, at least, having regard to the changing size, character and capacity of bingo halls. In any event, a move away from refusing to grant any direction in terms of Section 32, to applying the policy set out in 7/1 of process is, in my judgment, a significant move in the respondents' position and cannot be said, to evidence a totally rigid attitude to such matters. There may, indeed, to my mind, be a real question as to whether the decision of Lord Clyde, in the 1987 case, would have been any different today if the facts had remained the same, standing that the legislation, in its essentials, has remained the same. Be that as it may, the question is whether or not, the material placed before me, and the submissions made in the present case, mean that the respondents' decisions fall to be criticised in any material respect. As has been seen the bedrock of the petitioners' attack was very much composed of submissions concerning lack of reasons, or at least adequate reasons, from the respondents for their decisions. In truth, however, ultimately (and it was reflected I think in the last minute adjustment of their pleadings) the petitioners' complaint, in this respect, came to be that they had not been provided with either reasons for the respondents adhering to their policy in relation to the petitioners' applications or at least reasons for that policy and the adherence to it, which the petitioners found satisfactory or understandable. It was, however, in my opinion, disingenuous for the petitioners to contend, as they initially did, that they were not given or did not know the reasons for the decisions. The reason for the decisions was that the respondents applied their policy in deciding to refuse the applications for directions for maximum numbers of machines outwith that policy. The petitioners were perfectly aware of that. They were also, having regard to what Mr Loudon had to say in his submissions to the respondents, perfectly well aware of what that policy was. Mr Loudon went to that hearing in the hope that he could persuade the respondents, not only to make relaxations from their policy in respect of the petitioner's applications but indeed, as counsel for the petitioners said, "to draw up a clean sheet" - by which I think he meant that the respondents should abandon completely their existing policy and formulate a new one or, perhaps, give up having any policy on the matter at all. For these reasons, I am of the opinion that there is simply no substance in the petitioner's complaint that no proper or adequate reasons were provided for the respondent's decisions. In that situation I do not require, in the event, to consider, in any detail, the competing submissions made in relation to the developing law in respect of when an administrative body, in exercising a discretionary power, should provide reasons for its exercising the power in the way it did. As Lord Clyde observed in the 1987 case there is certainly no statutory obligation on the respondents to provide any reasons, when exercising their Section 32 power. While I, of course, accept since that decision the world has moved on in this area of jurisprudence and that the recent authorities make it clear that, notwithstanding that no express obligation has been imposed on a statutory decision maker to give reasons it will, as often as not, be appropriate for reasons to be given, I remind myself that the authorities still have not arrived at a point of saying that this is a matter of general principles. Having regard to the nature of the discretionary power conferred in Section 32, and the overall statutory context in which it appears, I am not persuaded that this is necessarily a situation where the law ought to require the decision maker to provide reasons for the decisions made thereunder. But, in any event, that is not a point I need to decide since I am satisfied that at most the petitioner's complaint in this respect is one of form only and not substance. They knew the reasons for the decisions, even though they were not given written reasons after the hearing had taken place. I know of no authority, and none was referred to in the discussion before me, that demands that reasons, which have been adequately communicated to the person affected by the decision, by means other than writing, must nevertheless be in writing where the law considers that an obligation to provide reasons arises. Nor do I know of any authority, and none was presented to me, that establishes that where there is a duty to give reasons, the decision maker must produce a detailed reasoned judgment, like a judicial opinion, setting out arguments for and against the decision arrived at and what weight was given, if any, to those various arguments. To impose such a requirement on bodies like the respondents would be a step too far.
[39] When it comes to the petitioner's attack on the policy, as such, the starting point is their concession, quite properly made, that the respondents were perfectly entitled to formulate, and apply a policy, in relation to applications made to them under Section 32. They also in this respect accepted that, in Scotland, the law remains as stated by Lord Weir in the case of Elder v Ross & Cromarty District Council Board. His Lordship, in that decision, followed English authorities, the most significant of which is, perhaps, the case of British Oxygen Company Ltd v Board of Trade. As has been, Lord Reid, in that case, emphasised that what was important was that, while a statutory body exercising a statutory discretionary power, was perfectly entitled to adopt and apply a policy in relation to that power, it had be prepared to listen to arguments for a change of that policy. In a case to which Lord Reid referred, R v Port of London Authority ex parte Kynoch Limited (1919) 1 KB 176, Bankes LJ in a frequently cited passage contrasted two classes: "Cases where a Tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case", and "Cases where a Tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever". The former class, it was held would normally amount to a legitimate exercise of discretionary power. The latter kind of case would not. In the present case, the respondents were prepared to listen to Mr Loudon's arguments in an attempt to make them change their minds. They decided, however, not to change their policy after having listened to him. There is, in my judgment, nothing wrong in that. It is clear from the transcript of the hearing that, to a very large extent, Mr Loudon's submissions were driven from considerations of demand. It is, of course, perfectly natural that the petitioners wish to maximise their income from what are, no doubt, highly lucrative machines, by having more of them. It may well be, indeed, that, like Oliver Twist, their desire will always be to have more. But demand is, in my judgment, not an overriding consideration for the respondents to take into account in formulating their policy. It is not the purpose, in any sense, that I can discern of the statutory provision in question to provide exclusively, for demand. The purpose of the legislative provision is to control and to restrict the number of A WP's in bingo halls, and, in my judgment, the factors which the respondents have set out in their statement of the policy, which they have adopted and applied, are entirely appropriate and relevant considerations in exercising the power they have. Those considerations are reflected in the Gaming Board's advice, which, though the respondents were not obliged to take into account, they clearly did.
[40] Section 32, moreover, demands that the respondents fix a maximum figure if they are minded to give a direction and the fixing of that figure is a matter for them alone. It clearly involves an exercise that it is not capable of being, or is required to be, subjected to any precise scientific testing. When what is being sought is the retention of the social character of a bingo hall and the maintenance of safety and convenience, how that may be best achieved is clearly a matter of judgment and impression. To a very considerable extent it is just the sort of exercise which is involved when a discretionary power in the unqualified terms conferred in Section 32, is conferred upon a body like the respondents. Having regard to these considerations, I am unable to detect in the policy any element of irrationality, which would mean that decisions based on its application would require to be set aside.
[41] As has been seen the respondents' approach to these matters has been the subject of attack in previous cases. I do not consider that the petitioners' case as advanced before me has materially altered the position, which was before the courts in the previous cases. In particular I am not satisfied that the petitioners have placed before me any material or argument which has rendered the reasoning of Lord McCluskey in Gala Leisure as inapplicable to the decisions in the present case.
[42] I should add that, in my judgment, the decision of the court in the case of Coyle does not avail the petitioner. It is clearly distinguishable from the present case, having regard to the statutory provisions that were under consideration in that case. Those statutory provisions imposed upon the decision maker an obligation to be satisfied about certain things and it was the decision maker's failure to carry out their obligation in that respect which rendered their decision subject to attack. The position in the present case is quite different in that the statutory provisions impose no such obligations on the respondents.
[43] The petitioners, of course, argue that in neither of the previous cases in which the court has considered the respondents' decisions under Section 32, was the Convention of Human Rights relied upon. I am, however, quite clear that the convention assists them not. In the first place I accept entirely the respondents' contention that Article 6 of the Convention is not engaged in the circumstances of the present case. While it is undoubtedly the case that the adoption of the Convention into domestic law has produced some very fundamental changes in our law and procedure, it is, perhaps, too often presumed that it provides a remedy, in many situations, where previously none existed, without careful thought having been given as to exactly how that might have been brought about. While, no doubt, certain actings and decisions of the respondents, in their several roles, may engage the Convention's provisions that is not the starting and finishing point. The starting point is what is involved in the relevant statutory power conferred by Section 32. As I have already indicated, that confers the widest of discretions on the respondents and creates no legal rights in the petitioners. The decision of the ECHR in the case of Masson, in my judgment, is of direct application in the present case and establishes that no relevant civil right are created by Section 32 which would mean that the exercise of the power conferred by it engages Article 6(1). The petitioners, in my judgment, appeared, at times to be committing the fallacy, exposed by Lord Hope in the case Matthews, by thinking that in some way the Article 6 confers particular rights, in substantive law, on the individual. That fallacy has further, and most recently, been discussed by the House of Lords in the case of Wilson v First County Trust Limited (2) [2004] 1AC 816 where the House of Lords, once again, have pointed out that Article 6 of the Convention does not create substantive civil rights, but only guarantees the procedural right to have a claim in respect of existing civil rights and obligations adjudicated by an independent tribunal. A distinction, in my judgment, has to be kept in mind between a party having a title and interest, or locus standi, to challenge administrative actings and decisions, by way of judicial review, in domestic law, on the basis that those actings and decisions may affect his interests in a narrow or broad sense, and, on the other hand, questions of adjudication of breaches of substantive civil rights which domestic law has conferred on him.
[44] For completeness I should say that, had I considered that for some reason Article 6 might be engaged in the circumstances of this case, that would have taken the petitioners nowhere because Article 6 is ultimately concerned to ensure that the adjudication of rights is carried out according to overall standards of fairness, as opposed to any prescribed requirements in relation, for example, to the giving of the reasons. For the reasons already given, the petitioners were not, in my judgment, treated unfairly in this case in that they knew the policy, they were given an opportunity to persuade the respondents to change it or to grant them a relaxation from it, and they knew that the reason for the decision was the respondents adherence to their policy.
[45] There was also, in my judgment, absolutely no substance in the submissions made by junior counsel for the petitioners, although not advanced by senior counsel, that the decisions were in some way inept because it had not been shown that the policy was adopted, afresh and understood by the Board, freshly constituted after the local election. Suffice it to say that these submissions were misconceived for the reasons advanced by junior counsel for the respondents, which I have set out above.
[46] In conclusion I should add this. The kind of wide administrative power conferred by Parliament under Section 32, which creates no rights in anyone, is, in my judgment, not likely to be an area where the courts will, or should, entertain an intensity of review into questions of policy, formulated by bodies like the respondents, for the purpose of the exercise of that power, provided that the court is satisfied that no element of bad faith or obvious perversity of reasoning is involved. In the present case I am entirely satisfied that the policy was adopted and applied in good faith, was subject to occasional review and was designed to achieve legitimate objectives having regard to the statutory provisions. Those dissatisfied with the policy can seek to continue to challenge it by making applications for directions under Section 32 and making submissions in relation thereto, which will no doubt be listened to by the respondents, but lack of success in persuading the respondents to change their policy does not, in my judgment per se demonstrate perversity, such as to allow an interference by the court in such matters.
[47] For all the foregoing reasons I shall sustain the respondent's second plea in law and dismiss the petition.
