COURT WOULD INTERFERE WHERE POWER IS EXERCISED ARBITRARILY

Congreve v. Home Office (1976) Q.B. 629. In that case, on January 29th 1975 the Home Secretary announced that the colour television licence fee would be increased from £12 to £18 on April 1st and made an order under section 2(1) of the Wireless and Telegraphic Act 1949 to effect the increase. The Home Secretary, in accordance with his administrative practice when an increase in the fee was imminent, prepared special instructions for its agents who included, post office counter clerks, telling them that anyone applying in advance for the renewal of a licence which did not expire until March 31st or later should be told to reapply on or before April 1. On March 26th, the plaintiff, whose current licence expired on March 31, applied to the post office for a £12 licence. The counter clerk did not follow the Home Office Instruction; she issued him with a £12 licence which on its face would not expire until February 29, 1976. Some 24,500 licence holders were likewise issued with overlapping licences before April 1. The Home Office wrote to each holder of a £12 overlapping licence stating that unless the additional £6 was paid the licence taken out in advance of April 1 would be revoked. The plaintiff did not pay and was one of those who received the letter dated 11th November 1975 which threatened that unless the £6 was paid by December 1, the overlapping licence would be revoked and prosecution for the use of colour television proceeded with. The plaintiff issued a special indorsed writ claiming a declaration that the revocation of his licence would be unlawful, invalid, and of no effect. The High Court refused to make the declaration holding that the Home Secretary was entitled to revoke a licence under section 1(4) of the Act of 1949 and that the Home Office letters gave the licence holder open choices. On appeal, the appeal was allowed, the Court of Appeal holding that although the Home Secretary has undoubted discretion under Section 1(4) of the Wireless and Telegraphic Act, 1949 to revoke a licence the discretion was fettered to the extent that the courts would intervene if it was exercised arbitrarily or improperly; and in view of the fact that the licence issued to the plaintiff was a valid licence on the day it was issued and that there was nothing in the Act or the Regulations which prohibited the holding of overlapping licences, it was an improper exercise of the Minister’s discretionary power to propose to revoke a licence validly obtained as a means of levying money which Parliament had given the Executive no authority to demand. Accordingly, the court could and should intervene to declare that the proposed revocation of the plaintiff’s licence was unlawful, invalid, and of no effect.