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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.

LORD DENNING MR: Every person who has a colour television set must get a licence for it. It is issued for 12 months, more or less. The fee up to 31st March 1975 was 12. As from 1st April 1975 it was increased to 18. This increase was announced beforehand by the Minister, but it did not become law until the very day itself, 1st April 1975. UP till that date the department could only charge 12 for a licence. On and after that date it was bound to charge 18. This gave many people, who already held a licence, a bright idea. Towards the end of March 1975 they took out new licences at the then existing fee of 12. These would overlap their old licences by a few days, but the new licences would last them for nearly the next 12 months. So they would save the extra 6 which they would have had to pay if they had waited after 1st April 1975. To my mind there was nothing unlawful whatever in their trying to save money in this way. But the Home Office were furious. They wrote letters to every one of the overlappers. They said, in effect: 'We are not going to let you get away with it in this way. You must pay up the extra 6 or we will revoke your new licence'. I will quote the very words:

"By renewing the licence before the existing licence expired the increased fee has been avoided and we have been instructed by the Home Office, for whom we act as agent in operating the television licensing system, not to allow this. I am, therefore, required to ask you to remit the additional fee of 6 together with the enclosed receipt form within 14 days ... In the event of failure to pay the additional fee, we have been instructed by the Home Office to revoke the licence taken out in advance. It will then no longer be valid and you will have to renew your licence which expired at the end of March 1975 at the new rate".

So the overlappers would forfeit the 12 which they paid and would have to pay 18 for another licence.

A lot of timid ones succumbed to that threat. They paid up the 6. But the strongminded ones did not. They went on using their television sets under their 12 licences. Two months later, as a sop, the Home Office modified their threat. They said to the recalcitrants: 'Pay up the 6 or we will revoke your new licences after eight months. By that means we will make you pay at the increased rate.' I will again set out their very words of the letter of 27th August 1975:

"If you do not make this additional payment now, your licence will be allowed to run for eight months from the date of your previous licence and will then be revoked".

After getting that letter, again the ranks of the overlappers broke. Some paid up. But others stood firm. Their 12 licences were still in force. They went on using their television sets. On 11th November 1975 the Home Office gave another warning:

"If you would now send me a remittance for 6...I will arrange for the validity of your licence to be extended to 31st March I976. I am sorry to have to remind you that, unless you do so, your television licence will be revoked as from 1 December 1975. If thereafter you use a television set without holding a valid current licence, I am afraid that you will render yourself liable to prosecution....".

A few days later the Home Office carried out their threat. On Wednesday 26th November 1975 - even whilst an appeal to this court was known to be pending - they sent out notices revoking the 12 licences with effect from 1st December 1975. I set out the words of the letter of revocation:

"This sum of 6 has not been received. Accordingly, I am directed by the Secretary of State to give you NOTICE that the LICENCE obtained by you in March 1975 is hereby REVOKED with effect from 1 December 1975....If you are to continue using a colour television set, you should take out a fresh licence promptly at the current fee of 18".

If those notices are valid, every one of the overlappers must stop using his television set or be guilty of a criminal offence. They appeal to this court to help them.

Mr Congreve is their leader. His case is brought to test all of them. Counsel on his behalf submitted that the demand of the Home Office for 6 was an unlawful demand; that the licence was revoked as a means of enforcing that unlawful demand; and that, therefore, the revocation was unlawful.

Counsel for the Minister submitted that, by taking out an overlapping licence, Mr Congreve was thwarting the intention of Parliament; that the Minister was justified in using his powers so as to prevent Mr Congreve from doing it.

Now for the statutory provisions. The granting of television licences is governed by the Wireless Telegraphy Act 1949, and the regulations made under it. The 1949 Act said (so far as material):

1.-(1) No person shall ... install or use any apparatus for wireless telegraphy except under the authority of a licence in that behalf granted by the [Minister].

(2) A licence ... may be issued subject to such terms, provisions and limitations as the [Minister] may think fit. . .

(3) A licence shall, unless previously revoked by the [Minister], continue in force for such period as may be specified in the licence.

(4) A ... licence may be revoked, or the terms, provisions or limitations thereof varied, by a notice in writing of the [Minister].

2.-(1) On the issue or renewal of a ... licence, and ... at such times thereafter as may be prescribed by the regulations, there shall be paid to the [Minister] by the person to whom the licence is issued such sums as may be prescribed by regulations...

The 1970 and 1971 regulations provided:

On and after 1st July 1971 on the issue of a broadcast receiving licence ... the licensee shall pay an issue fee of the amount specified ... in Schedule 3, whatever may be the duration of the licence.

The amount specified in Sch 3 for colour television was 12.

The 1975 regulations came into operation on 1st April 1975 and said:

'These Regulations...shall come into operation on 1st April 1975... The principal Regulations shall be amended by substituting ... (b) for "12...18".

Now for the carrying out of the statutory provisions. Undoubtedly those statutory provisions give the Minister a discretion as to the issue and revocation of licences. But it is a discretion which must be exercised in accordance with the law, taking all relevant considerations into account, omitting irrelevant ones, and not being influenced by any ulterior motives. One thing which the Minister must bear in mind is that the owner of a television set has a right of property in it; and, as incident to it, has a right to use it for viewing pictures in his own home, save insofar as that right is prohibited or limited by law. Her Majesty's subjects are not to be delayed or hindered in the exercise of that right except under the authority of Parliament. The statute has conferred a licensing power on the Minister; but it is a very special kind of power. It invades a man in the privacy of his home, and it does so solely for financial reasons so as to enable the Minister to collect money for the Revenue. It is a ministerial power which is exercised automatically by clerks in the Post Office. They cannot be expected to exercise a discretion. They must go by the rules. The simple rule - as known to the public - is that, if a man fills in the form honestly and correctly and pays his money, he is to be issued with a licence.

Now for a first licence. Test it by taking a first licence. Suppose a man buys on 26th March 1975 a television set for the first time for use in his own home. He goes to the Post Office and asks for a licence and tenders the 12 fee. He would be entitled to have the licence issued to him at once; and it would be a licence to run from the 26th March 1975 until 29th February I976. I say 'entitled', and I mean it. The Home Secretary could not possibly refuse him. Nor could he deliberately delay the issue for a few days - until after 1st April 1975 - so as to get a fee of 18 instead of 12. That would not be a legitimate ground on which he could exercise his discretion to refuse. The Minister recognises this. He allows newcomers who apply for a licence before 1st April 1975 to get their licence for the next 12 months for the 12 fee.

Now for a second licence. But the Minister says that it is different with a man who already has a licence for a television set expiring on 31st March 1975. The Minister says that he is entitled to refuse to issue such a man with a new licence until after the old licence has expired. See what this means. The man must wait until some time in April to get his new licence. It may be two or three days - or even weeks - before he can get to the Post Office. Meanwhile, he will be guilty of a criminal offence every time he turns on the television. The Minister says that does not matter. He will make it right afterwards. This seems to me a very cynical approach to the law. I think the man is entitled to protect himself - and keep within the law - by taking out a new licence before the end of March 1975. Take a simple case. Suppose on the 26th March 1975 a man is going away for a month and wants to get his new licence at once so that his family can use the television whilst he is away. He goes to the Post Office and tenders the 12 fee. The Minister could not lawfully refuse to issue it. He would have to issue the then current licence, that is from the 26th March 1975 onwards for 12 months, more or less. There would be no legitimate ground on which he could refuse. Not until 1st April 1975 could the Minister have demanded the 18; and then he must demand the 18, and no less. That is a simple illustration of an overlapping licence which is perfectly lawful. So with many others. To my mind any man is entitled, if he pleases, to take out an overlapping licence; and the Minister has no discretion to stop him. It would be a misuse of his power for him to do so. In the present case, however, there is no difficulty. On 26th March 1975 Mr Congreve went to the Post Office. The Minister did not refuse to issue him with a licence. The lady clerk did not even ask him whether he had an existing licence. Mr Congreve filled in the form. He paid his money, 12. She issued him with a licence from 26th March 1975 to last until 29th February 1976. That licence was obtained perfectly lawfully. The Minister cannot dispute it. Nor does he now; though he did before the judge.

Now for the power of revocation. But now the question comes: can the Minister revoke the overlapping licence which was issued so lawfully? He claims that he can revoke it by virtue of the discretion given him by s1(4) of the 1949 Act. But l think not. The licensee has paid 12 for the 12 months. If the licence is to be revoked - and his money forfeited - the Minister would have to give good reasons to justify it. Of course, if the licensee had done anything wrong - if he had given a cheque for 12 which was dishonoured, or if he had broken the conditions of the licence - the Minister could revoke it. But, when the licensee has done nothing wrong at all, I do not think the Minister can lawfully revoke the licence, at any rate, not without offering him his money back, and not even then except for good cause. If he should revoke it without giving reasons, or for no good reason, the courts can set aside this revocation and restore the licence. It would be a misuse of the power conferred on him by Parliament: and these courts have the authority - and I would add, the duty - to correct a misuse of power by a Minister or his department, no matter how much he may resent it or warn us of the consequences if we do. Padfield v Minister of Agriculture, Fisheries & Food is proof of what I say. It shows that when a Minister is given a discretion - and exercises it for reasons which are bad in law - the courts can interfere so as to get him back on to the right road. Lord Upjohn put it well when he said:

"[the Minister] is a public officer charged ... with the discharge of a public discretion affecting Her Majesty's subjects; if he does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly".

Now for the reasons here. What then are the reasons put forward by the Minister in this case? He says that the increased fee of 18 was fixed so as to produce enough revenue for future requirements. It was calculated on previous experience that no one would take out an overlapping licence before the 1st April 1975 - or, at any rate, that no appreciable number of people would do so. When he found out that many more were doing so, he tried to prevent it so far as he could. He gave instructions to the clerks that anyone who applied towards the end of March 1975 for an overlapping 12 licence should be told to come back on or after the 1st April 1975, and thus made to pay the increased fee of 18. His policy would be thwarted, he said, and the revenue rendered insufficient, if large numbers of people were allowed to take out overlapping licences. He said, too, that other licence holders (being the vast majority) would have a legitimate grievance. So he considered it proper to revoke the overlapping licences of those who had acted contrary to his policy.

Are those good reasons? I cannot accept those reasons for one moment. The Minister relies on the intention of Parliament. But it was not the policy of Parliament that he was seeking to enforce. It was his own policy. And he did it in a way which was unfair and unjust. The story is told in the report of the Parliamentary Commissioner. Ever since 1st February 1975 the newspapers had given prominence to the bright idea. They had suggested to readers that money could be saved by taking out a new colour licence in March 1975 instead of waiting till after the 1st April 1975.

The Minister did nothing to contradict it. His officials read the articles and drew them to his attention. They raised the query: should a letter be written to The Times, or should an inspired question be put in Parliament, so as to put a stop to the bright idea? But the Minister decided to do nothing. He allowed the bright idea to circulate without doing anything to contradict it. And all the time he kept up his sleeve his trump card - to revoke all overlapping licences. Thousands of people acted on the bright idea; only to be met afterwards by the demand, 'Pay another 6'.

The conduct of the Minister, or the conduct of his department, has been found by the Parliamentary Commissioner to be maladministration. I go further. I say it was unlawful. His trump card was a snare and a delusion. He had no right whatever to refuse to issue an overlapping licence or, if issued, to revoke it. His original demand, 'Pay 6 or your licence will be revoked', was clearly unlawful - in the sense that it was a misuse of power -especially as there was no offer to refund the 12, or any part of it. His later demand, 'Pay 6 or your licence will be revoked after eight months', was also unlawful. Suppose that, owing to mistaken calculation, the original 12 had been found inadequate. Would it be legitimate for the Minister to say after eight months: 'I am going to revoke your licence now and you must take out a new licence'? I should think not. The licence is granted for 12 months and cannot be revoked simply to enable the Minister to raise more money. Want of money is no reason for revoking a licence. The real reason, of course, in this case was that the department did not like people taking out overlapping licences so as to save money. But there was nothing in the regulations to stop it. It was perfectly lawful; and the department's dislike of it cannot afford a good reason for revoking them. So far as other people are concerned (who did not have the foresight to take out overlapping licences) I doubt whether they would feel aggrieved if these licences remained valid. They might only say: 'Good luck to them. We wish we had done the same.'

There is yet another reason for holding that the demands for 6 to be unlawful. They were made contrary to the Bill of Rights. They were an attempt to levy money for the use of the Crown without the authority of Parliament; and that is quite enough to damn them: see Attorney-General v Wilts United Dairie.

My conclusion is that the demands made by the Minister were unlawful. So were the attempted revocations. The licences which were issued lawfully before the 1st April 1975 for 12 cannot be revoked except for good cause; and no good cause has been shown to exist. They are, therefore, still in force and the licensees can rely on them until they expire at the date stated on them.

I would add only this. In the course of his submissions, Mr Parker QC [counsel for the Home Office] said at one point - and I made a note of it at the time - that if the court interfered in this case, 'it would not be long before the powers of the court would be called in question'. We trust that this was not said seriously, but only as a piece of advocate's licence.