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On first, and brief review, some fundamental things occur to me. Not exclusively or entirely I consider:
"I am not persuaded that first come first served is the approach which must be taken, whether as a requirement or necessary consequence of the procedures set out in the Act, as a result of of any obligation of fairness, or on the basis of Chung".
Unfortunatley, although it was pointed out to the applicant's group, and the legal team were made aware of it, no argument was offered in respect specifically of the fundamental right to "Equality before the Law" or Human Rights in general.
By removing the order of application from the process, Sheriff Noble has ridden roughshod over every tenet of fairness. How can it be legally fair for anyone to be deliberately placed behind those who applied after them?
And how can Noble's argument be compatible with Human Rights, and Equality before the Law, which every decision he makes should be taken in accordance with.
I also see no slam dunk reason for granting the licence rather than referral back to the committee. Some petty excuse that the circumstances of the application couldn't be restored. This is balderdash, a smoke screen.
I also find it extraordinary that although he didn't pronounce in accordance with Human Rights, Sheriff Noble chose to introduce case precedent where it wasn't asked for by either counsel - (City of Glasgow District Council v Doyle, 1995 SLT 327) - and refrained from allowing argument to be led concerning this. He claims that he had already made his decision and that it supports it rather than influences it, yet either side might claim that they had a right to lead argument. I suspect this alone could be a poiunt of appeal, that Sheriff Noble erred in Law.
However, it seems that in making referral to this untested case precedent,s Sheriff Noble has sought justification for the direction he was steering his decision in. IMO this suggests a premeditation, predetermination of the judgement. It also calls into question the ultimate decision taken. Of course, Sheriff Noble would be aware that having granted the licence then the pursuer will not appeal this.
Also, IMO, if predetermination to give the council a judgement it can live with, possibly even "asked" for, then his action would go untested. Whether, as losing defender, the council appeals on this premise or not will open up real concerns as to the conduct of this process.
I suspect a fundamental breach of the Court's integrity here. It occurs to me that the Sheriff has delivered the judgement that the council wanted, possibly even directly asked for although we can't know this for sure, even to the point that it was timed to be conveniently delivered after the election - the date of decision being handwritten into a space left for it - coupled with the inordinate time it took for this apparently simple decision to be delivered.
On first review, the pursuer wins the appeal. The council gets a decision it can live with. The remaining sisted cases which conform to the same criteria will be granted by the court. Other cases sisted may well make a similar argument for grant, although experience suggests that the system will refer back for further refusal based on Sectiuon 10(3). The council has lost a few licences, the IPL is now dead in the water.
Other cases will come before the court to test Human Rights and Section 10 (3) in particular. The campaign will escalate, and the council's skulduggery in these cases will become supporting evidence in future cases.
It's just going to get bloodier. A weakened council is going to have to shell out ever more licence payer's money to defend the indefensible. And we all know that licence payer's cash, used to support council structures being diverted to the courts, means that taxpayers' are going to have to shell out more.
There is a solution the council should take. THey have an opportunity to resolve the matter once and for all.
We'll see.
Meanwhile we will take the time to consider the judgement in full.
What we do know for fact is that the council, having been told that Option was illegal, deliberately followed Option 2.
The opportunity cost to those denied their licences is considerable. As the council contests the remaining cases this is going to increase exponentially.
BTW
The actions of the Licensing section, the legal department and the elected officials in committee have already opened the council up to a significant compensation claim. Their next actions may well exacerbate this.
Victory now isn't about the grant of licences. Victory is reining in a council that plays politics in a disgraceful, autocratic, dictatorial and undemocratic way and punishing it through winning compenation for its transgressions.
Perhaps then the organisation will look at itself and a hard pressed public will hold individual elected and unelected officials to account.
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