Miss Behavin' Ltd v Belfast City Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD HOFFMANN,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD MANCE,LORD NEUBERGER OF ABBOTSBURY
Judgment Date25 Apr 2007
Neutral Citation[2007] UKHL 19

[2007] UKHL 19

HOUSE OF LORDS

Appellate Committee

Lord Hoffmann

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Mance

Lord Neuberger of Abbotsbury

Belfast City Council
(Appellants)
and
Miss Behavin' Limited
(Respondents) (Northern Ireland)

Appellants:

Richard Gordon QC

John O'Hara QC

David Scoffield

(Instructed by Director of Legal Services, Belfast City Council)

Respondents:

John F Larkin QC

Mark Reel

(Instructed by Fox & Associates, Belfast)

LORD HOFFMANN

My Lords,

1

The end of the Chatterley ban and the Beatles' first LP marked a sudden loss of confidence in traditional British prudishness by legislators and jurors which made the law against obscene publications very difficult to enforce. As a result, the distribution of all but the most hard core pornography became, at least in practice, a lawful trade. This gave rise to unexpected social and environmental problems. It was unacceptable for vendors of pornography to flaunt their wares before the public at large. Ordinary newsagents who sold soft porn avoided outraging sensitive customers by putting it on high shelves. Shops which specialised in pornographic publications and videos, together with sex aids and other such articles, tended to have opaque windows, as much to protect the privacy of customers as the sensibilities of passers-by. They congregated in run-down areas of large towns, usually near the railway station, clustering together on the same principle that people carrying on similar businesses have always traded in close proximity to each other. But the other inhabitants of the locality, both commercial and residential, often objected to the proliferation of sex shops on a mixture of environmental, social, aesthetic, moral and religious grounds: fears about the kind of people who ran them and the customers they attracted; distaste or moral or religious objection to what was going on inside; concern that they lowered the tone of the neighbourhood and attracted other even less desirable trades such as prostitution and organised crime.

2

All these concerns bubbled to the surface in the debate in the House of Commons in 1981 on the second reading of the Local Government ( Miscellaneous Provisions) Bill, which contained elaborate provisions dealing with the licensing of premises supplying meals or refreshments, tattooing and ear-piercing (the piercing of other parts of the body does not appear to have been contemplated), acupuncture and electrolysis, but said nothing about sex shops. Honourable members wanted to know why not. The strength of feeling was such that the government brought forward amendments at the report stage, introducing the system of local authority licensing which is now contained in section 2 and Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982. The Act applied only to England, but the identical system was extended to Northern Ireland by the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 No 1208 (NI 15). In the Order, the relevant provisions are article 4 and Schedule 2.

3

Article 4 gives a council power to resolve that the licensing system contained in Schedule 2 should apply to its district. The Belfast City Council has so resolved. Paragraph 6 makes it unlawful to use premises as a sex shop without a licence. Paragraph 10 prescribes how an application for a licence should be made and sub-paragraphs (15) and (16) provides for representations by interested parties:

"(15) Any person wishing to make any representation in relation to an application for the grant, renewal or transfer of a licence under this Schedule shall give notice to the council, stating in general terms the nature of the representation not later than 28 days after the date of the application.

(16) Where the council receives notice of any representation under sub-paragraph (15), the council shall, before considering the application, give notice of the general terms of the representation to the applicant."

4

Paragraph 12 deals with grounds of refusal. Sub-paragraph (1) specifies certain grounds personal to the applicant on which refusal is mandatory; for example, the council cannot grant a licence to a person under 18, or a foreign company, or someone whose licence has been revoked by the council within the previous 12 months. Sub-paragraph (3) contains grounds on which the council may refuse, of which the one relevant for present purposes is (c):

"that the number of sex establishments in the relevant locality at the time the application is made is equal or exceeds the number which the council considers is appropriate for that locality"

5

This must be read with sub-paragraphs (4) and (5):

"(4) Nil may be an appropriate number for the purposes of sub-paragraph 3(c).

(5) In this paragraph, "the relevant locality" means…in relation to premises, the locality where they are situated …"

6

The effect of these rather convoluted provisions is that a council may refuse a licence for a sex shop in any locality on the ground it does not consider it appropriate to have sex shops in that locality. It was said that because the Order says that the Council "may" refuse, this ground is "discretionary". But I am not sure whether that is a very helpful adjective. It would hardly be rational for the Council to decide that the appropriate number of sex shops in the locality was nil, but that it would all the same exercise its discretion to grant a licence. I think it is more accurate to say that the question of how many sex shops, if any, should be allowed is a matter for the Council's judgment. In this case the respondent company applied for a licence to run a sex shop at premises in Gresham Street and the Council's Health and Environmental Services Committee, to which the application was referred, recommended refusal on the ground that the appropriate number of sex shops in the relevant locality was nil. In arriving at this decision, it said that it —

"gave consideration to the character of [the] locality, including the type of retail premises located therein, the proximity of public buildings such as the Belfast Public Library, the presence of a number of shops which would be of particular attraction to families and children and the proximity of a number of places of worship …"

7

This recommendation was adopted by the Council and the application refused. The Council also gave other reasons, personal to the applicant, but I shall confine myself to the question of whether the refusal under paragraph 12(3)(c) was valid.

8

In arriving at its decision, the Council appears to have considered some representations and objections by members of the public which were made outside the 28 day period prescribed by paragraph 10(15). There was an argument about whether they were entitled to do so. Both the judge and a majority of the Court of Appeal said that the Council had a discretion to consider late objections but the Court of Appeal, reversing the judge, said that the Council had not purported to exercise such a discretion and was therefore wrong to have taken them into account. I do not agree. In my opinion, paragraph 10(15) is concerned only with the position of the objector. If he does not comply with the deadline, he cannot complain that the Council did not take his objection into account. But paragraph 10(15) does not prohibit the council from taking all relevant matters into account, whether they have been communicated by objectors or others, early or late, or in any other way. It would be very strange if such a provision, designed to allow the Council to carry on its business in an orderly and expeditious manner, had the effect of requiring it to shut its eyes to facts which it considered relevant to its decision. The only difficulty is sub-paragraph (16), which seems to suggest that only the terms of representations received within the 28 day period need be communicated to the applicant. Fairness obviously requires that the terms of any representations which the Council proposes to consider should be communicated to the applicant so that he may have an opportunity to comment. But this general principle is in my opinion sufficient to supplement sub-paragraph (16) and keep the scheme fair and workable.

9

As to the substance of the decision, both the judge and the Court of Appeal agreed that the Council had acted fairly and properly exercised its powers under the Order. But they disagreed over whether the Council had complied with the Human Rights Act 1998. The Court of Appeal said that the Council, in exercising its statutory powers, had not sufficiently taken into account the respondent's right to freedom of expression under article 10 of the Convention and its right to the peaceful enjoyment of its possessions under article 1 of Protocol 1.

10

I am prepared to assume, without deciding, that freedom of expression includes the right to use particular premises to distribute pornographic books, videos and other articles and, rather more doubtfully, that a person who is denied the right to use his premises as a sex shop is thereby "deprived of his possessions": compare, however, ISKCON v UK (1994) 18 EHRR CD 133 and Re UK Waste Management Limited's Application [2002] NI 130. But both of these rights are qualified. The right to freedom of expression may be subject to such restrictions as are necessary in a democratic society "for the prevention of disorder or crime, for the protection of health or morals, for the protection of the…rights of others". The right to enjoyment of possessions is subject to the right of the State to "control the use of property in accordance with the general interest."

11

The Court of Appeal accepted that, in principle, the legislature was entitled to restrict both freedom of expression and the enjoyment of...

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