R (Nilsen) v Governor of Full Sutton Prison and another
| Jurisdiction | England & Wales |
| Judge | LORD SCOTT OF FOSCOTE,BARONESS HALE OF RICHMOND,LORD MANCE,LORD HOPE OF CRAIGHEAD,LORD NICHOLLS OF BIRKENHEAD |
| Judgment Date | 21 June 2006 |
| Neutral Citation | [2006] UKHL 30 |
| Date | 21 June 2006 |
| Court | House of Lords |
[2006] UKHL 30
HOUSE OF LORDS
Appellate Committee
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Mance
(on the application of Corporation of London)
and others
(on the application of Corporation of London)
and others
Appellants:
Secretary of State for Environment, Food and Rural Affairs
Jonathan Crow
Tim Ward
(Instructed by DEFRA)
Covent Garden Market Authority
Hazel Williamson QC
Amanda Tipples
(Instructed by Stephenson Harwood)
Respondents:
Timothy Straker QC
Philip Coppel
(Instructed by Comptroller and City Solicitor Corporation of London)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote. For the reasons he gives, with which I agree, I would allow these appeals.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote. I agree with it, and for the reasons he gives I too would allow the appeals.
Introduction
My Lords,
London has three very ancient markets. Smithfield Market is a market for the sale of meat. Billingsgate Market is a market for fish. Both are owned by the Corporation of London ('the Corporation'). Each of these markets is entitled under common law to protection from competition by any rival market held within a distance of 7 miles. The third ancient market, the market with which this appeal is particularly concerned, is the Covent Garden Market.
As is well known the Covent Garden Market, or the New Covent Garden Market as it is now known, is a market for the sale of horticultural produce, flowers, fruit, vegetables and the like. This Market, which I shall for convenience continue to refer to as the Covent Garden Market is now regulated by the Covent Garden Market Act 1961 (the 1961 Act) as amended by Acts of 1966, 1969 and 1977. The market, originally located in Covent Garden, is now located at a site at Nine Elms London SW8 (within 7 miles of the Smithfield and Billingsgate Markets) and is owned by the Covent Garden Market Authority ("CGMA"), a statutory corporation established by the 1961 Act. The Nine Elms site was vested in CGMA by the 1961 Act. The 1961 Act sets out, as one would expect, the duties and powers of the CGMA. The primary duty of CGMA is to provide facilities for the sale of horticultural produce and the statutory powers conferred on CGMA are designed to enable it to do so. Section 18 of the 1961 Act has a side heading "Additional Functions" and sub-section (1) sets out, in six paragraphs, various additional powers that CGMA may exercise. The first five of these paragraphs all relate in one way or another to the sale of horticultural produce, but paragraph (f) confers power on CGMA
"to carry on all such other activities as it may appear to [CGMA] to be requisite, advantageous or convenient for them to carry on for or in connection with the discharge of their duties or with a view to making the best use of any of their assets …"
This power, however, is then limited by the following proviso
"but [CGMA] shall not, by virtue of paragraph (f) of this subsection, carry on activities with a view to making the best use of any of their assets except with the consent of the Minister."
"The Minister", for the purposes of the 1961 Act is now the Secretary of State for Environment, Food and Rural Affairs.
CGMA has on a number of occasions between October 1995 and August 2003 obtained the Minister's consent to the grant by CGMA of leases or licences to traders at its Nine Elms site permitting the carrying on of activities other than, or in addition to, the sale of horticultural produce. On three occasions leases granted in exercise of the paragraph (f) power had permitted the distribution of meat or of fish but had included an express prohibition on face-to-face trade in such produce. But CGMA was anxious to have the power to authorise face-to-face trading in meat or fish and, under cover of a letter of 20 June 2003, the Minister gave, or purported to give, pursuant to the proviso to section 18(1)(f), his consent to this.
The consent was expressed to permit CGMA to grant, or extend the scope of, leases
"… for the purpose of selling fish or meat, or fish or meat products on such part or parts of the site as [CGMA] considers to be surplus to its requirements for the purposes of providing market facilities for the dealing in bulk in horticultural produce"
but was subject to the condition that CGMA gave one month's written notice to the Corporation of its intention to exercise this power and contained an express proviso that the consent
"… shall not be taken as (i) granting any market rights, or (ii) dispensing with any requirement to obtain the consent or authorisation of any other person that may be required for the purposes of carrying on the activities to which consent is given, or (iii) authorising any activity carried on without such other consent or authorisation being obtained or (iv) authorising any activity that may otherwise be unlawful."
Having obtained this consent CGMA decided to extend the scope of three leases by authorising the lessees to trade in meat or fish produce from their respective units at the Nine Elms site. Notification of their intention was given to the Corporation. The response of the Corporation was to commence the judicial review proceedings which have now found their way to this House. The Corporation fears that meat and fish trading at the Nine Elms site will compete with the meat and fish trading activities carried on at the Smithfield Market and the Billingsgate Market.
The Proceedings
The proceedings were commenced by an application made on 19 September 2003 for permission to apply for judicial review. Review was sought of two decisions; first, the section 18(1)(f) consent given by the Minister on 20 June 2003; second, the notice given by CGMA to the Corporation of its intention to extend the scope of the three leases. The application was refused by Maurice Kay J on paper on the ground that the construction of section 18(1)(f) contended for by the Corporation was unarguable. The application was renewed orally on 6 February 2004 before Mitting J but was again refused on the same ground. Counsel for the Secretary of State was not called on.
The construction of section 18(1)(f) contended for by the Corporation was (as expressed in para.51 of the document setting out the grounds for judicial review relied on by the Corporation) that
"… section 18(1)(f) of the 1961 Act:
(a) does not empower the CGMA to extend the scope of leases to existing tenants at NCGM [the Nine Elms site] (nor to grant leases at NCGM) so as to permit a...
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