Following intervention by John Gould, Senior Partner, and Tom Bradford, barrister, on behalf of several national regulators, the appeal to the Supreme Court in Hemming and others v Westminster City Council (UKSC 2013/0146) has been allowed in part, with a reference to the Court of Justice of the European Union (CJEU) on remaining issues.
Russell-Cooke intervened earlier this year on behalf of the Solicitors Regulation Authority, Bar Standards Board, Architects Registration Board and Farriers Registration Council following suggestions in the Court of Appeal that the issues had a potentially wide-ranging impact on professional regulators which use funds raised from authorisation and practising fees to fund enforcement action and prosecutions.
The appeal, heard by Lord Neuberger, Lord Mance, Lord Clarke, Lord Reed and Lord Toulson, concerned a judicial review in which Westminster City Council's licensing fees had been found by the lower courts to be unlawful. The Respondents had argued at first instance and in the Court of Appeal that since the Provision of Services Regulations 2009 came into effect, implementing the Services Directive, Westminster was not entitled to include in the licence fee the cost of enforcing the licensing system against unlicensed operators.
However, in a groundbreaking judgment, the Supreme Court has now accepted the argument supported by Russell-Cooke that the Directive provisions have no application to ongoing charges for authorisation. Accordingly, the restriction to the cost of administrative processes does not apply and the conventional application of revenue to matters such as perimeter enforcement is unobjectionable.
An issue now remains in relation to the handling of charges upon admission or first registration. The Supreme Court could not resolve the correct analysis of a requirement to pay for the first period of authorisation as part of the admission or first registration formalities. Even assuming that such a payment was refundable to unsuccessful applicants, the court considered that it could amount to an impermissible charge for the initial application. Given the uncertainty the Supreme Court decided to refer that narrow issue to the CJEU. Tim Dutton QC and Robert O'Donoghue appeared before the Supreme Court as Leading and Junior Counsel.
The judgment as handed down on 29 April 2015 can be found here.
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