Congreve v Home Office
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 04 December 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1204-2 |
| Docket Number | 1975 C. No. 11808 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 1975 |
[1975] EWCA Civ J1204-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal Form The High Court Of Justice Queen's Bench Divisionm
(Mr. Justice Phillips)
The Master of the Rolls
Lord Justice Roskill and
Lord Justice Geoffrey Lane
MR. G. LEVY (instructed by Messrs. Herbert Smith & Co., Solicitors, London) appeared on behalf of the Plaintiff (Appellant).
Mr. R. PARKER. Q.C. and MR. H. WOOLF (instructed by the Treasury Solicitor) appeared on behalf of the Defendants (Respondents).
Every person who has a colour television set must get a licence for it. It is issued for twelve 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 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 twelve months. So they would save the extra £6 which they would have had to pay if they 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 strong-minded ones did not. They went on using their televisionsets 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 over lappers broke. Some paid up. But others stood firm. Their £12 licences were still in force. They want on using their television sets. On 11th November, 1975, the Home Office gave their 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, 1976. I am sorry to have to remind you that, unless you do so, your television licence will be revoked as from 1st December, 1975.
If thereafter you use a television set without holding a valid television 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 1st 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.
Mr. Levy, 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.
Mr. Parker, Queen's 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 (i) No person shall instal or use any apparatus for wireless telegraphy except under the authority of a licence in that behalf granted by the Minister, (ii) A licence may be issued, subject to such terms, provisions and limitations as the Minister may think fit. (iii) A licence shall, unless previously revoked by the Minister, continue in force for such period as may be specified in the licence, (iv) A licence may be revoked, or the terms, provisions or limitations thereof varied, by a notice in writing of the Minister. 2 (i) 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 Regulations of 1970-1971 provided that: "On and after 1st July, 1971, on the issue of a broadcasting 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 Schedule 3 for colour television was £12.
The Regulations of 1975 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 for £12 … £18".
Now for the carrying out of the statutory provisions. Undoubtedly those statutory provisions give the Minister 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 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, 1976. 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 hecould 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 sometime 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...
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