Licensing and Permits in UK Law

In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority.

The business has a capital value or goodwill only if the entity can be, and is, organised in a way that allows future cash flows to be capitalised. Nonetheless, it is clear on Strasbourg jurisprudence, now confirmed by high domestic authority, that A1P1 protects only "goodwill", as a form of asset with a monetary value, and does not protect an expected stream of future income which, for mainly organisational reasons, cannot be or is not capitalised.

How should a licence or permission be treated under A1P1? It seems to me that certain licences or permissions are "assets", that is, they have a monetary value and can be marketed for consideration, either through outright sale, "leasing", or sub-licensing. A more difficult case is a licence which has been acquired at a "market" price but which may not be assigned or sub-licensed.

However, there are other licences or permissions that are neither marketable nor have been obtained at a "market" price, that is, a price representing what is thought to be the value of net discounted future cash flows that the licence might generate. Such a licence in one sense has a value to the holder because, without it, he cannot carry on the licensable activities. However, such licences do not seem to me to be "assets" having monetary value in the sense required by A1P1.

Furthermore, to treat such licences as "possessions" would, in my view, risk introducing unjustified distinctions into what is already a fairly complex area of law. If licensable activities enjoyed higher protection, the result in Countryside Alliance (that the expectation of future earnings was not a possession) could have been different if hunting had first been a licensable activity and the effect of the ban in the Hunting Act 2004 had been to make such licences worthless.

It is limited to offences arising under enactments which prohibit the doing an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorites Whenever the prosecution seeks to rely on this exception, the Court must construe the enactment under which the charge is laid.

My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal.