Horsnell v Boston Borough Council

This is an application for an order restraining the respondent, Boston Borough Council (“the Council”) from revoking the licence for the claimant to occupy a pitch for the purposes of publicising the United Kingdom Independence Party and his canditure in the General Election. By agreement of the parties this hearing is to be treated as the trial of the action. The parties have elected to call no oral evidence but to rely upon witness statements served by the parties. That has left me at times in the uncomfortable position of having to deal with some evidence which conflicts.

For reasons which emerge later in this judgment, at the end of the day it is possible to resolve the application for an injunction without resolving disputed issues of fact. I had the advantage of reading witness statements from the following persons, the claimant and Mr Donald Ramsen, the treasurer of the Boston & Skegness Branch of UKIP, and on behalf of the Council, witness statements from Mr Andrew Staton, Mr Gary Sergeant and Mr John Ellis, two witness statements from Mr Gary Sergeant.

The claimant is the UKIP candidate for the constituency of Boston & Skegness at the forthcoming General Election, which is due to take place on 5^th May 2005. The Council is the manager and controller at the Market Place, Boston. The market was established under a royal chartered granted by Henry VIII. Market day is held each Wednesday and Saturday. The market occupies an area of about half an acre of public land. Each market day consists of about 85 stalls which are erected by council employees. A few regular stall holders such as purveyors of food have their own stalls. A market at common law is the franchise right of having a concourse of buyers and sellers to dispose of commodities in respect of which the franchise is given. I was referred to that definition from Peace & Chitty’s Law of Markets and Fairs (5th Ed) at page 1.

The purpose of the market is to enhance retail activity within the town. It increases the amount of commerce within the town attracting tourists in the spring and summer. It is for that reason that the Council subsidises the running costs of the market, including the stalls themselves, which, as I have indicated, apart from a few food stalls, belong to the council.

The charge to a trader to use a stall for a day is £19, which is well below that which it would cost to have a shop in the area or, I assume, to maintain a stall in the market by paying its fair share of the cost of maintaining the market place. The Council also control the activities carried on at each stall, seeking to maintain a balance between the various purveyors of produce and their location in the market place; for example, the Council allows a maximum of five fruit and vegetable stalls on any market day.

The Council lets the stalls under the terms of the Council’s Market Stalls and Pitchers Terms and Conditions of letting (“the Terms”). Traders are divided into two types, regular and casual traders. Under the terms, permission to use a stand will not be granted unless a trader has completed the necessary application form, provided evidence of public liability insurance and completed a trader agreement.

Regular traders are required to take up their pitch by 8am and will, so far as possible, be allocated the same pitch on each market day. Thus, regular traders have some limited form of security in obtaining the pitch. They are not turned away on the grounds of a lack of space, provided they turn up on time. Casual traders are only permitted to take up their pitches from 8am, and have no security. Subject to availability, they may be placed anywhere in the market place. If all the pitches are taken when they turn up, they are turned away.

Regular and casual traders have, in effect, a licence that is not for a fixed term but until determined upon reasonable notice and public law considerations, assuming that such considerations apply. Mr Sergeant, who has quite considerable experience in the running of markets by councils has not come across the granting of fix term licences. In his experience, while it was common to distinguish between regular and casual traders, it was usual to have licences determinable by the Council. Mr Sergeant’s evidence was to the effect that the Council had always refused to allow stalls in the market place to be used by political parties. That evidence does not seem to be wholly correct, but there is evidence that in 1998 the Council refused to allow the Labour Party to take a stall for the purposes of campaigning, and in July 2000, refused to allow the Conservatives to have a stall in the market.

By 1998, the Council had begun to firm up an express policy of not letting stalls for any political purpose. One reason for that is that convention bolsters the market place as a place of commercial activity. Stalls run for non-commercial purposes would affect the retail environment and change the public perception of the market. Another reason is that the Council appears to have become increasingly aware of its obligations to remain and to be seen to be politically neutral.

That policy, which is formalised in terms of an instruction to the Market’s Officer, the official who is responsible for managing the market place, appears only to apply to stalls in the market place. It does not prevent the canvassing of people in the market place by members of political parties. However, the Council views the policy as being consistent with its duty to remain politically neutral in relation to political campaigning. The Council is not allowed to act for party political purposes. It can, on occasion, make council rooms or school rooms available for political meetings: see for example, sections 95 and 96 of the Representation of the People Act 1983. However, there are restrictions upon the display of political campaigning material on Council property. Furthermore, section 2(3) of the Local Government Act 1986 provides:

“A local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited … from publishing themselves.”

Section 2(1) of the Local Government 1986 provides:

“A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party.”

The expressions “publish” and “publication” refer to any communication in whatever form addressed to the public at large or to a section of the public, see section 6(3) of that Act.

In addition, in considering the effect of a publication, one is directed to take into account the matters in sections 2(2) of the 1986 Act. Furthermore, the Statutory Code of Recommended Practice on Local Authority Publicity issued by the Secretary of State under section 4(1)(a) of the Local Government Act 1986, to which the Council must have regard, provides, amongst other matters, at paragraphs 41 and 42:

“The period between the notice of an election and the election itself should preclude proactive publicity in all forms by candidates and politicians involved directly in the election. Publicity should not deal with controversial issues or report views, proposals or recommendations in such a way that identifies them with individual members or groups of members.”

Paragraph 42 provides:

“The principles that are set out above [in 41] should also be taken into account by local authorities in decisions to grant assistance to others to issue publicity.”

The claimant was elected as UKIP’s candidate in November 2004 and has been preparing himself for the election for some time. He gave evidence to the effect that his local branch of UKIP had used stalls in the market place in previous years. It is common ground that UKIP had a stall in the market in 2002 and for one day in 2004. The claimant states that his UKIP association checked with Mr Ellis, the market supervisor, whether they could have a stall. Mr Ramsen, who, as I have indicated is the treasurer of the Boston & Skegness branch of UKIP, statement that he met with Mr Ellis in about November 2004, long before the election was announced, and told him that he wanted a stall from 5^th January to 4^th May 2005. Mr Ellis recalls this conversation but as being one conducted on the telephone.

In the event, the claimant, or perhaps UKIP, used the stall from Wednesday, 5^th January and thereafter every Wednesday and Saturday up till 23^rd March, and then from 30^th March to 6^th April when the use was stopped by the Council. The use resumed on 22^nd April 2004 pursuant to an interlocutory order from Silver J, which was made without consideration of the merits. The stall was taken at a cost of £19 per day and the claimant wanted to use the stall in order to make himself a familiar figure in the market place in town and get to know the local people. At his stall he had various election literature and he uses it as a base from which to discuss political issues with persons passing the stall to move in and around the market.

Mr Ellis recalls the instruction which was given to him on 31^st July not to let stalls to political campaigners. He can recall discussing the provision of a stall with someone from UKIP in November 2004 and he states that on 5^th January he gave a casual trader’s application form and a copy of the terms to someone at the staff from UKIP. Mr Ramsen denies receiving any such documentation on 5^th January when he paid the fee, as he put it, on UKIP’s behalf. However, Mr Ellis’ evidence is that he chased the claimant for return of the application form and was assured by him it would be returned in due course. Mr Ellis also made out the receipts for £19 on a daily basis in the name of UKIP.

Mr Ellis states that in January he did not understand that UKIP was a political party and thought that they were more of a lobby group. Even so, it is somewhat curious that he allowed them to take the stall once he had observed that they were not selling anything. It is perfectly plain from the terms that govern licences to the market, and from the nature of the market itself, that it is a market for traders. Mr Ellis also then failed to chase up the return of a casual trader’s application form. As Mr Ellis frankly admits, he made a mistake in allowing UKIP to take the stall.

On 30^th March 2005, Mr Ellis received an instruction from Mr Sergeant that he was not to let a stall to UKIP. He informed the claimant of that and told him that 30^th March would be the last date on which UKIP could have a stall. On 2^nd April, the claimant turned up and said that he had received the approval of a Paula Sergeant who had said he could use the stall. 2^nd April was a Saturday and Mr Ellis could not contact Miss Sergeant, so he allowed the claimant to use the stall. A similar incident occurred on 6 April because Miss Sergeant was away.

It then emerged, or Mr Ellis ascertained, that so far as Mrs Sergeant was concerned, she had not given permission. The claimant told Mr Ellis that he had had an exchange of emails with Mrs Sergeant which clarified the situation. On 7^th April Mr Ellis met the claimant at the Council’s offices and told him that he could not use the stall. He did not suggest that he had an agreement to use the stall until 4 May or for any fixed period.

The last time that UKIP used the staff prior to the interlocutory order was on 6^th April. As I have noted, from 22 April it used the stall pursuant to an order of Silver J.

The claimant’s case is that the Council is attempting to revoke its licence summarily and in breach of natural justice. The claimant relies upon the decisions in R v Barnsley Council ex parte Hook [1976] 1 WLR 1052 to the effect that a stall holder’s right to a stall cannot be terminated without just cause. The matter was summarised by Lord Denning at pages 1056H to 1057E, and I do not propose to set out that long citation. I also refer to the judgment of Scarman LJ at pages 1059D to 1060D. I was also referred to R v Barnsley Council ex parte Hook [1976] 1 WLR 1052

These cases were of course concerned with a wholly different situation. They were concerned with stall holders using a market for the purpose for which the market is held, that is for traders, to earn their living by selling produce. The claimant contends that as a term or indeterminate licensee, he has a contractual right not to have his licence terminated without cause or that public law considerations prevent the Council terminating his licence without cause.

I do not consider that the special considerations which apply in the context of cases relating to licences whereby people can earn their living, apply to the claimant in circumstances where he sought a licence to use a stall for a purpose unconnected to the purpose for which the market is held. There was no question of the claimant earning his living. He was there to canvass support for political purposes, and I consider that the Council can terminate the licence on purely contractual grounds, if that is what its contract with the claimant permitted it to do.

Assuming that a conversation between Mr Ellis and Mr Ramsen took place along the lines that UKIP wanted the use of a stall to 4 May, I do not consider that Mr Ellis’ indication in response to an enquiry from Mr Ramsen that a stall could be provided for that period, amounted to an agreement between Mr Ramsen and Mr Ellis on behalf of the Council for the grant of a licence to use the stall until 4 May.

Mr Ellis’ evidence was that when he did enter not a contract on behalf of the Council, he did so subject to the terms and expected a licence holder to complete an application form. That was the reason, of course, that he chased the claimant for a return of the form. The form was never completed. Furthermore, Mr Ramsen had seen a copy of a draft of a casual trader’s application and the Council’s terms. The terms made it plain that any permission was conditional upon completion of the casual trader’s application form: see clause 1.1 of the terms. The terms are, furthermore, predicated on the basis that the applicant will be a market trader.

It was equally consistent with the conversation that Mr Ellis had with Mr Ramsen that if UKIP turned up on time on 5^th January and on the days thereafter, a stall would be available on the terms of a casual licence. Accordingly, I am not persuaded that the claimant or UKIP had acquired a term licence. As I have indicated, they have not completed an application for a casual trader’s licence. At most the claimant was obtaining a daily licence to use the stall allocated on the days he attended the market place. Save for any issues as to the public law element, with which I am not concerned, since such considerations would require an application by way of judicial review, I consider that the Council was entitled to decline to renew a licence. All that the claimant acquired was a licence on the day he turned up and on the day he turned up, it was open to the Council to decline to issue him with a licence. The claimant had not entered into any over-arching agreement which entitled him to a stall on the basis of being a casual trader for an indeterminate period, terminable on reasonable notice.

However, even if the claimant had acquired a term licence or an indeterminate licence, in my opinion, the claimant faces a much more severe burden than merely showing that the Council had to act fairly or in accordance with its public law duties to him before it could terminate his licence.

The Council can only act within its powers. I consider that the provision of the stall for the purpose of canvassing electors is in clear breach of section 2(3) of the Local Government Act 1986 and therefore outside the Council’s powers. By making a stall available at a subsidised rate, the Council was, on any basis, providing financial assistance, and possibly other assistance, in other words, the provision of a stall solely for the purposes of allowing the publication of political material, which the Council would not be permitted to publish itself.

It follows that any agreement for a licence to the claimant or UKIP for the purpose for which they wanted the stall, could not be binding on the Council, the contract not being one to which the Local Government (Contracts) Act 1977 applies. The Council would also have been acting in breach of the Code of Recommended Practice which had been approved by Parliament and to which it is directed to have regard.

I consider that not only was the Council entitled to refuse to grant the claimant or UKIP a licence to use a stall in the market place, it was obliged to do so in order not to infringe the provisions of the Local Government Act. In the light of that conclusion, no real question arises as to whether or not the Council had a duty to Act fairly on considering whether to withdraw or grant a licence to the claimant or UKIP arises, but a I have indicated above, I do not consider that the Council was in fact under any duty to act fairly in the event that it decided to terminate the licence.

Finally, I should say that I do not consider that anything which the Council has done has infringed the claimant’s rights under Article 10 of the Convention. The Council is not interfering with the claimant’s rights of freedom of expression. The Council accepts that the claimant is free to canvass in the market; it merely declines, as it must do, to afford the claimant a staff from which to do so.

Accordingly, in the light of the above matters, I do not consider that it would be appropriate for me to grant the claimant the relief which he seeks today.