Many types of businesses or activities must be licensed. The licensing scheme will make it a requirement that a valid licence is held in order to lawfully conduct the business or activity. Licences are issued by a governmental or government-approved body or authority. The licence sets out the terms and conditions on which the relevant business or activity may be carried out.
Licence holders may be required to hold certain qualifications. Licence holders are usually required to be of good character and have a demonstrable record of compliance. They are likely to have ongoing compliance obligations, in order to maintain their licence. Annual or other periodic renewal is usually required. Conditions may be attached to the licence. These may be general conditions applicable to all licence holders or may be tailored to the particular licence holder.
There are many types of regulators and licensing schemes. The types of agencies granting licences vary considerably. The structure and design of the licensing may reflect a particular history. The era of the legislation which establishes the licensing scheme may explain its structure. Many older licensing schemes require a District Court Order. The more modern approach uses a statutory regulator with a more proactive remit.
Many Intoxicating liquors licences, betting office, auctioneering and employment agency licences are granted by the courts. In most of these cases, the courts issue a certificate of qualification and the licence itself is issued by the Revenue Commissioners. The licence fee is in the nature of an excise tax. The annual application to the District Court must usually be preceded by an advertisement. Members of the public may object to renewal. The Court considers the objection at the licensing court.
Local authorities license a wide range of activities. Gaming and lotteries, abattoirs and caravan parks are licensed by the local authority. Activities carried on by businesses, which have an impact on the environment are commonly licensed by local authorities. For example, air pollution, water pollution, discharge licences and planning permission are granted by the local authorities.
Historically, Government departments directly licensed a range of activities. In many sectors, the licensing function has been removed from the Government department and transferred to an independent regulator. This modern trend derives in part from European Law which has required the State to establish independent regulators in many sectors.
Independent regulators now license a wide range of activities. The Central Bank regulates most financial services providers, including banks, investment advisers, building societies, insurance companies and intermediaries. EU law has necessitated the creation of regulators in the fields of energy, communications and transport.
Licences to practise various professions were historically issued by professional bodies. For example, solicitors and barristers are issued by the Law Society and Bar Council. The modern trend has seen the establishment of independent statutory regulators, such as the Medical Council and its equivalent in the other health professions. The recent Legal Services Bill continues this trend toward independent regulators.
Sanctions for Breach of Licence
Generally, undertaking an activity which requires a licence, without a licence, is a criminal offence. Sometimes, the licensing authority can seek a court order to prevent a breach of the relevant legislation. Similar sanctions may exist in respect of the breach of the terms of a licence.
In recent times, administrative sanctions (involving on the spot fines) have been more commonly employed in regulatory enforcement. Notice is given of an alleged infringement. If it is accepted by the and the administrative penalty is paid, no prosecution is taken. The individual is free not to accept the penalty and to have the matter determined by the court, usually with the risk of a higher level of sanctions.
Some licence schemes provide for restriction on the numbers of licenses. These are unusual in modern times. The former cap on Taxi licences and Pharmacy licences have been removed. The restriction on the total number of public house licences still exists, but the ease of transferability has increased greatly in the last decade.
There may be justification for a limitation on the number of licences for objective quality control reasons. The restriction on numbers for the purpose of benefitting the licence holders, to the detriment of the public is likely to be anti-competitive. There have been legal cases where restrictions on new entrants or numbers have been found to be an unlawful use of the licensing authority’s power. European Union competition law, which is directly effective, opposes monopolistic and anti-competitive behaviour.
Regulation is principally designed to maintain standards to protect the public. Continued registration and licensing will require compliance with ongoing conditions and most commonly code of professional conduct. Breaches of the code may be the subject of complaints by members of the public and customers affected.
Regulation may not be abused in order to provide an anti-competitive monopoly. Tensions arise between the naturally restrictive nature of maintaining standards on the one hand, which is in the public interest, and maintaining sufficient number of practitioners so that there is free and fair competition.
Many codes of conduct might be viewed as restrictive and questions arise as to whether they can be objectively justified under the Competition Act. Decisions by associations are subject to the Competition Act and are potentially void as restrictive of competition.
Nature of Licence
Most licensees are personal to the licence holder. Licences are usually conditional upon the personal skills, character and/or qualifications of the licence holder. Other categories of licence may be transferable. In some cases, the licence has both personal and non-personal aspects.
For example, intoxicating liquor licences refer to both the suitability of the premises and the licence holders. The licence may be transferred, but the licence holder must apply to Court to show that they have suitable qualifications and are fit to hold the licence.
Licences are generally granted for a period and may need to be renewed. Renewals may be annual or multi-annual. Fees may be payable. It may be necessary to prove compliance with ongoing requirements, such as insurance, training and development, and continued suitability of the business premises. A public register of licences is usually kept.
Undertaking an activity, subject to licensing, without a licence is usually a criminal offence. If a licence is required for an activity, a contract undertaken by an unlicensed person may not be enforceable in court by them. It will generally be enforceable against them unless the other party to the contract is aware of the lack of registration and is at fault in dealing with the unlicensed person.
Grant of Licence
The relevant legislation will specify the basis upon which the licences may be granted. Licences should be granted in accordance with objective criteria to the extent possible. The criteria range from grounds which are objective and capable of easy identification to grounds that are more open and involve discretionary or judgmental element. The licensing decision may involve the balancing of the interests of licence holders and those of the public, in terms of the maintenance of standards.
A licence is usually a public document, open for inspection. There may not usually be private arrangements between the licence holder and authority dealing with the conditions on which business may be undertaken. Licences grant the right to do something which would otherwise be illegal matter and therefore there is a public law interest in transparency.
Because a licence may be of critical importance to the person\’s livelihood, the applicant will usually have a legitimate interest in relation to the integrity of the application process. He is therefore entitled to a fair hearing in relation to refusal or revocation of a licence. The applicant is generally entitled to reasons for refusal.
Once, granted, there is an increased legitimate interest in the renewal of the licence. However, it seems that there is no general constitutional right to compensation for the loss, restriction or dilution of a licence. There have been cases, for example, in the field of taxi licences where the licensing scheme has been radically changed effectively removing the capital value of licences.
Conditions may be attached to licences. The extent to which conditions may be attached depends on the terms of the legislation. Some legislation provides for uniform licences, by which all licence holder are subject to common rules and requirements. Other schemes allow for more flexibility as to the terms and conditions that may be applied.
Several professions are subject to statutory regulation. It is a requirement to be registered or licensed under the legislation in order to practice in the area and provide the relevant service. Practising without registration is an offence in each case.
Various professions and callings have been licensed for historical and ad-hoc reasons over time. Certain professional structures are regulated in detail by statute.
There are other professional bodies which are in effect regulated as associations under contract law. Membership of the association is not necessarily a legal prerequisite for the relevant service provider, but in many such cases, it is a practical and market necessity.
Although the association may be wholly voluntary, it may not in practice be possible to provide the relevant service or practice in the area without being a member of that profession or body.
Although such bodies and associations are not regulated by statute, principles of constitutional justice apply, as they may have the power to deprive a person of his or her livelihood.
In some areas, such as accounting, there is an overarching regulator over is self-regulated non-statutory bodies and associations.
Under most of the statutory schemes, registration is a prerequisite to practising that profession.
A public register is maintained which is open to inspection. Typically registration requires certain educational qualifications and practical training. Several bodies regulate or provide their own educational requirements directly or indirectly.
Bodies may have a number of different specialist registers. Some permit registration of specialists in particular areas.
A feature in the medical sphere is where a single regulator, the Health and Social Care Professionals Council registers a number of different professions.
The legislation may set out the basic prerequisites to registration. There may be discretion to exclude persons on the basis that they are not fit and proper persons to practise the relevant profession. However, in the case of assessments of this type, which affect the right of an applicant to earn a livelihood, the discretionary power and grounds must be exercised in good faith on demonstrably objective terms and condition.
A person who is already a member of the profession may not be removed from the register without due process. His right to earn his livelihood is recognised as a constitutional right reflecting its central importance for a person who has spent many years training and practising.
Because revocation or non-renewal of a licence may have a profound impact on the licence holder, the licence issuer may be subject to judicial review of it fails to comply with the standards of reasonableness and constitutional justice. The refusal or revocation of a licence should not be a punishment. The principal objective is the protection of the public.
In some cases, if there is a revocation, it is possible to appeal to another agency. In some cases, it may be possible to appeal to Court.