House of Lords
Published May 1, 2007
Belfast City Council v Miss Behavin’ Ltd
Before Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond,
Lord Mance and Lord Neuberger of Abbotsbury
Speeches April 25, 2007
In refusing an application for a sex shop licence, a local authority was
entitled to take into account objections to the application received after
the expiry of the prescribed period.
Where the council had acted fairly and had properly exercised its powers, its
failure to refer specifically to the applicant’s rights under the European
Convention of Human Rights did not vitiate its decision.
The House of Lords allowed an appeal by Belfast City Council from a decision
of the Court of Appeal in Northern Ireland (Sir Brian Kerr, Lord Chief
Justice, Lord Justice Sheil and Mr Justice Hart) ([2006] NI 181) allowing an
appeal by Miss Behavin’ Ltd from Mr Justice Weatherup who had dismissed its
application for judicial review of the council’s refusal of its application
for a licence.
Mr Richard Gordon, QC, Mr John O'Hara, QC, of the Northern
Ireland Bar, and Mr David Scoffield, of the Northern Ireland Bar,
for Belfast; Mr John F Larkin, QC and Mr Mark Reel, both
of the Northern Ireland Bar, for the applicant.
LORD HOFFMANN said that the system of local authority licensing of sex shops
was now contained in section 2 of, and Schedule 3 to the Local Government
(Miscellaneous Provisions) Act 1982.
That Act applied only to England, but an identical system had been extended to
Northern Ireland by the Local Government (Miscellaneous Provisions)
(Northern Ireland) Order (SI 1985 No 1208 (NI 15)), in which the relevant
provisions were article 4 and Schedule 2.
The council had resolved, under article 4, that the system in Schedule 2
should apply to its district. Paragraph 6 of Schedule 2 made it unlawful to
use premises as a sex shop without a licence.
Paragraph 10 provided: “(15) Any person wishing to make any representation in
relation to an application for the grant ... of a licence ... shall give
notice to the council, stating ... the nature of the representation not
later than 28 days after the date of the application.”
Subparagraph (16) provided that the council should, before considering the
application, give notice of the general terms of the representation to the
applicant.
Paragraph 12(3) contained grounds on which the council might refuse an
application: “(c) that the number of sex establishments in the relevant
locality ... is equal to or exceeds the number which the council considers
is appropriate for that local-ity..." Subparagraph (4) provided that
nil might be an appropriate number.
The question of how many sex shops, if any, should be allowed was a matter for
the council’s judgment. The council’s health and environmental services
committee had recommended refusal of the applicant’s application for a
licence to run a sex shop at premises in Gresham Street, Belfast on the
ground that the appropriate number of sex shops in that locality was nil.
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 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.
The council had adopted the recommendation. In arriving at its decision, it
appeared to have considered some representations and objections by members
of the public made outside the 28-day period prescribed by paragraph 10(15).
The Court of Appeal, reversing the judge, had said that the council had not
purported to exercise a discretion to consider late objections and had
therefore been wrong to take them into account.
His Lordship did not agree. Paragraph 10(15) was concerned only with the
position of the objector. If he did not comply with the deadline he could
not complain that the council had not taken his objection into account.
But paragraph 10(15) did not prohibit the council from taking all relevant
matters into account, whether communicated by objectors or otherwise, early
or late, or in any other way. It did not have to shut its eyes to facts that
it considered relevant to its decision.
Fairness obviously required that the terms of any representation that it
proposed to consider should be communicated to the applicant so that he
might have an opportunity to comment.
As to the substance of the decision, both the judge and the Court of Appeal
had agreed that the council had acted fairly and had properly exercised its
powers under the 1985 Order.
But the Court of Appeal had said that the council had not sufficiently taken
into account the applicant’s right to freedom of expression under article 10
of the Human Rights Convention and its right to the peaceful enjoyment of
its possessions under article 1 of its First Protocol.
His Lordship was prepared to assume, without deciding, that freedom of
expression included the right to use particular premises to distribute
pornographic books, videos and other articles and, rather more doubtfully,
that a person who was denied the right to use his premises as a sex shop was
thereby deprived of his possessions.
But both those rights were qualified. The right to freedom of expression might
be subject to such restrictions as were 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” (article 10.2), and
the right to enjoyment of possessions was subject to the right of the State
to “control the use of property in accordance with the general interest”
(First Protocol, article 1.2).
The applicant had not argued that the legislature was not entitled to restrict
both freedom of expression and the enjoyment of possessions by requiring
that sex shops be licensed.
What it said was that, in exercising its judgment under article 12(3)(c) of
the Order as to whether a sex shop was appropriate in the locality of
Gresham Street, the council ought to have had regard to its obligation under
section 6 of the Human Rights Act 1998 to respect Convention rights.
The Court of Appeal had not said that the applicant’s human right to operate a
sex shop in Gresham Street had been infringed. Instead, it had said that the
applicant’s Convention rights had been violated by the way in which the
council had arrived at its decision.
In its reasons, the council had not shown that it had been conscious of the
Convention rights that were engaged. The decision had therefore been
unlawful unless it was inevitable that a reasonable council that had
instructed itself properly about Convention rights would have reached the
same decision.
That approach seemed to his Lordship not only contrary to the reasoning in R
(Shabina Begum) v Denbigh High School ( The Times March 23,
2006; [2007] 1 AC 100) but quite impractical.
Either the refusal had infringed the applicant’s Convention rights or it had
not. If it had, no display of human rights learning would have made the
decision lawful. If it had not, it would not matter if the councillors had
never heard of article 10 or the First Protocol.
His Lordship agreed with the judge that refusal of a licence had not been a
violation of the applicant’s Convention rights.
If article 10 and article 1 of the First Protocol were engaged at all, they
operated at a very low level. The right to vend pornography was not the most
important right of free expression in a democratic society.
This was an area of social control in which the Strasbourg court had always
accorded a wide margin of appreciation to member states, which in terms of
the domestic constitution translated into the broad power of judgment
entrusted to local authorities by the legislature.
If the local authority exercised that power rationally and in accordance with
the statutory purposes, it would require very unusual facts for it to amount
to a disproprortionate restriction on Convention rights.
That was not the case here. His Lordship would allow the appeal and dismiss
the application for judicial review.
Lord Rodger, Lady Hale, Lord Mance and Lord Neuberger delivered concurring
opinions.
Solicitors: Mr Ciaran Quigley, Belfast; Fox & Associates,
Belfast.
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