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Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 CA

Under the Sunday Entertainments Act 1932 local authorities were given power to allow cinemas to be open and used on Sundays 'subject to such conditions as the authority thinks fit to impose'.

The owners of the Gaumont Cinema in Wednesbury were granted a licence to give performances on a Sunday, subject to a condition that 'no children under the age of fifteen years shall be ...

{reg}admitted to any entertainment whether accompanied by an adult or not'.

The owners brought an action for a declaration that the condition was ultra vires and unreasonable. Their claim was dismissed and they appealed to the Court of Appeal.

In giving judgment the Court of Appeal pointed out that the case arose from an Act of Parliament that granted discretionary powers to local authorities. Consequently the courts had to remember that, first, they were not dealing with a judicial act but with an executive act; second, that the conditions that the local authority can impose as part of that executive act are 'without limitation'; and third, that the statute provided no appeal from the decision of the local authority.

Under these circumstances the courts can interfere with an act of executive authority only if it is shown that the authority has contravened the law. The court cannot substitute itself for the authority and is not a court of appeal against the decision of the authority. When executive discretion is entrusted by Parliament to a body such as a local authority what appears to be an exercise of discretion can be challenged in the courts in only a strictly limited class of case.

The law recognises certain principles upon which discretion must be exercised, but provided that those principles are not disturbed the discretion cannot be questioned in any court of law.

In this context, the exercise of discretion must be a real exercise. If in the statute conferring the discretion there is to be found expressly or by implication matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, it must have regard to those matters. Conversely if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.

Discretion must also be exercised reasonably. An individual entrusted with discretion must direct him- or herself properly in law and call his or her attention to the matters that he or she is bound to consider but exclude those matters that are irrelevant. If the individual does not obey those rules then he or she may be said to be acting unreasonably.

If a decision on a competent matter is so unreasonable that no reasonable person could ever have come to it, then the courts can interfere, although to prove a case of that kind would require something overwhelming. In this, it is not what the court considers unreasonable, as the courts are not set up as an arbiter of the correctness of one view over another.

In summary a court is entitled to investigate the action of a local authority with a view to seeing whether it has taken into account matters that it ought not to have taken into account, or has refused or neglected to take into account matters that it ought to have taken into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority has stuck to the matters that it ought to consider, it has nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. The power of the court to interfere in each case is not as an appellate authority to override the decisions of the local authority, but as a judicial authority that is concerned only with whether the local authority has contravened the law by acting in excess of the powers that Parliament has entrusted to it.

/reg}

Last modified on Tuesday, 31 January 2012 23:06
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