Public authorities often derive their powers from statute and therefore the drafting of the relevant legislation is fundamental to understanding the extent of those powers. However, whilst many powers will be expressly laid out in the relevant statute, the recent case of R (on the application of Leicester Gaming Club Limited) v The Gambling Commission  EWHC 531 (Admin) illustrates that an authority's powers may go beyond this and include powers that can be implied from the legislation.
Summary of key points
- Public bodies acting pursuant to statutory powers must consider whether they may have implied powers in addition to those expressly conferred by the relevant statute.
- It follows that those dealing with public authorities should bear in mind that the full extent of the authority's powers will not necessarily be set out in the legislation.
- The following factors are likely to weigh in favour of the existence of an implied power on the basis that it is incidental to an express statutory power.
- Where the express power is couched in broad terms allowing the authority a wide discretion.
- Where the outcome of implying a power would be to promote reasonableness and fairness.
- Where, once the express power has been used, the authority retains some residual function or power over the matter in question.
Leicester Gaming Club Limited brought a judicial review challenge against a decision of the Gambling Commission not to amend a certificate of consent granted by the Gambling Commission to it under the Gaming Act 1968. Under the 1968 Act, a casino licence is granted by a licensing authority but before a licence application can be made, a certificate of consent must be obtained from the Defendant.
The Claimant applied to the Defendant for a certificate of consent on 24 April 2006. A certificate was issued on 14 September and was stated to be valid "only in respect of an application for a licence made by 26th October 2006." The licence application was not made by the deadline.
The Claimant could not make another application for a certificate, due to a statutory prohibition on the Defendant from issuing a certificate in relation to any application made after 29 April 2006. The Claimant's solicitors asked the Defendant to extend the period specified in the certificate but the Defendant refused, asserting that it had no power to amend the certificate or to revoke and re-issue it.
Since the 1968 Act does not confer an express power on the Defendant to amend a certificate of consent to extend the time period within which a licence application must be made, the case turned on whether there was an implied power to do so.
The statutory powers
The relevant statutory powers are set out in Schedule 2 of the 1968 Act. The express power to specify the period for making a licence application lies in paragraph 4(7) of Schedule 2.
In determining whether there was an implied power to amend the time limit in the certificate of consent, the following paragraphs of Schedule 2 were also important:
- Paragraph 3(1) (a) which provides that a licence application shall be of no effect unless the Defendant has "issued to the applicant a certificate consenting to his applying for such a licence in respect of those premises, and that certificate is for the time being in force and the application is made within the period specified in the certificate".
- Paragraphs 4(4) and 4(5) which restrict the bodies to which the Defendant may grant a certificate and specify the criteria which the Defendant is to use when deciding whether to issue a certificate and paragraph 4(6) which prescribes what the Defendant can take into consideration when applying those criteria.
The implied power
In deciding whether the Defendant had an implied power to extend time, the Court applied the test derived from the House of Lords decision in Attorney-General v Great Eastern Railway Co. (1880); namely that a power should be implied if it may properly and reasonably be regarded as incidental to the relevant express power.
The Claimant contended that there was an implied power to amend the time period where there was good reason. The Defendant contended that it had only a limited implied power to amend and re-issue a certificate in order to correct any mistakes made by it in the certificate.
The Court found that there was an implied power to extend the time period. In reaching this decision, it took into account the following factors.
- The Defendant had complete discretion under paragraph 4(7) when specifying the time period. This was in contrast to the limits on the Defendant's discretion imposed by sub-paragraphs 4(4), (5) and (6) when deciding whether or not to issue a certificate. That broad discretion, the Court found, was consistent with the existence of an implied power to change the time period.
- By virtue of paragraph 3(1)(a) of Schedule 2, the certificate could apparently remain in force even though the time period specified in it for making an application had expired. On that basis, the Court rejected the Defendant's argument that once the certificate had been issued, the Defendant had no further powers in relation to the application.
- The purpose of the time limit was to permit the Claimant to make an application within a time scale. There was no good reason for concluding that the time period chosen by the Defendant should be the only time period possible, whatever circumstances arose.
- The implied power would promote reasonableness and fairness.
The Court also rejected the Defendant's argument that there was no implied power because such a power was unnecessary given the opportunity available when the 1968 Act came into force to make successive applications
The Court therefore found that there was good reason why an implied power to amend the time period for making a licence application could properly and reasonably be regarded as incidental to the express power to fix a time period.
Having decided that an implied power existed, the Court considered the scope of that power and, in particular, whether it would be too wide if it permitted amendment where there was good reason. Whilst the Court acknowledged that this phrase was imprecise and might generate future debate, it highlighted that the Defendant was experienced and well-equipped to determine whether it should exercise this power – albeit that this discretion would be subject to the review of the Court by way of judicial review.
This case highlights that the Courts are willing in some circumstances to imply a power into a statute where that power is incidental to an express statutory power. In this case the authority conceded that it did have some implied powers, but denied that they were as wide as the Claimant contended. This case therefore also highlights the difficulties and uncertainty for public authorities in determining the extent of implied powers. However, these difficulties would appear to be a necessary consequence of ensuring that statutory powers are not rigidly applied.
Of course, public bodies must also be careful not to act outside their powers (whether express or implied). In the present case, two trading rivals of the Claimant applied to be joined as interested parties. It is not inconceivable that, had the Defendant agreed to the Claimant's request for a time extension at the outset, these rivals would have brought their own proceedings against the Defendant claiming it had acted ultra vires.