To ban or not to ban

By Peter Coulson

- Last updated on GMT

Related tags: Judge, Human rights, Law

Coulson: a licensee is not compelled to do business with anyone he doesn't wish to
Coulson: a licensee is not compelled to do business with anyone he doesn't wish to
MA legal editor Peter Coulson considers the case of a Pubwatch ban being taken to the High Court again.

Once again it would appear that a Pubwatch ban on an unwanted customer is being taken to court.

This time, a High Court judge has held in a preliminary hearing that there is a case to argue, which is different from last time, when Buckingham Pubwatch's actions were held by two courts to be not liable to judicial review.

It is important for readers to recognise that there are separate issues here. There is absolutely no doubt, as the courts themselves have recognised, that an individual licensee has the right to ban anyone, even without giving a reason. The simple fact is that if he does not want to do business with someone, he is not compelled by law to do so. A public house, in spite of its name, is not a place where the public in general have some "special rights" to demand service. In fact, if I marched into a pub and demanded service, I would probably be shown the door!

Problems arise when there is joint action by a number of people to take a decision against someone. The allegations are second-hand, may not necessarily be backed up by facts, and the group usually only hears one side of the story. It is, in some lights, a kind of "kangaroo court" where the normal principles of English law do not come into play.

But then again, why should they? Nobody is suggesting that Pubwatch schemes have to be run like magistrates' courts or tribunals. Their principal objective, it seems to me, is to try and cut down on violence, disorder and criminal behaviour in their pubs. This is an outcome that surely even the police and the local community would welcome. If they take steps to ban troublemakers, then they are doing a public service to their thousands of customers who want to enjoy their pint in peace and quiet.

From this you will gather that I do not have too much time for the "infringement of human rights" argument in this context. I accept entirely that the Human Rights Act has an important part to play in ensuring that people are treated fairly. But it also plays in some instances too much of a part as a back-stop for lawyers who cannot think of anything else to argue.

To suggest that this particular Pubwatch acted "illegally and irrationally", as the lawyers are apparently claiming,

and that there were "procedural irregularities" all smacks of the arguments used against judicial or quasi-judicial bodies, whose actions are liable to scrutiny by the higher courts. But this is a volunteer group of pub licensees each of whom could ban at will anyone they wanted to, quite legally. They do not, it seems to me, have to act like a court themselves - quite the opposite. An informal ban would probably be a lot better than a formal one, which risks this kind of action.

What I hope happens is not just that this case is thrown out, but that the judges give a clear indication of the manner in which such bans may continue to be imposed without an ongoing fear of legal action. The main objective, which clearly the current Government shares, is that pubs should not be seen as a breeding ground for crime, disorder and drunkenness. It seems something of a paradox that an initiative from the trade seeking to support and implement that policy should be attacked by the legal profession.

This is why I still urge the Home Office to retain the "Ban the Thugs Act" provisions, which they seem hell-bent on removing from the statute book. It gives those many decent licensees a legal weapon to use against violent and unruly individuals who jeopardise their livelihood.

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