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Belfast City Council (Appellants) v. Miss Behavin' Limited (Respondents) (Northern Ireland)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Belfast City Council (Appellants) v. Miss Behavin' Limited (Respondents) (Northern Ireland)
 UKHL 19
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:
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):
5. This must be read with sub-paragraphs (4) and (5):
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
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  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 possessions by requiring that sex shops be licensed. The respondent has not argued the contrary. What it says is that, in exercising its judgment under article 12(3)(c) 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 1998 Act to respect Convention rights. Although the requirement of a licence was a restriction which pursued a legitimate aim, the Council should not, by its decision to refuse a licence, have interfered with the respondent's rights more than was necessary and proportionate for the achievement of that aim.
12. My Lords, I would not dissent from this proposition, although for the reasons I shall mention later, I find it difficult to imagine a case in which a proper exercise by the Council of its powers under the Order could be a breach of an applicant's Convention rights. If, however, the Court of Appeal had considered that the refusal of a licence was in this case a disproportionate interference with the human right of the respondent to sell pornography in a place of its own choosing, it should have quashed the decision for that reason. I would have disagreed on the facts, but at least the judgment would have proceeded on orthodox grounds. But the Court of Appeal did not say that the respondent's human right to operate a sex shop in Gresham Street had been infringed. Instead, it said that its Convention rights had been violated by the way the Council had arrived at its decision. In the reasons it gave, the Council had not shown that it was conscious of the Convention rights which were engaged. The decision was therefore unlawful unless it was inevitable that a reasonable Council which instructed itself properly about Convention rights would have reached the same decision.
13. This approach seems to me not only contrary to the reasoning in the recent decision of this House in R (SB) v Governors of Denbigh High School  1 AC 100 but quite impractical. What was the Council supposed to have said? "We have thought very seriously about your Convention rights but we think that the appropriate number of sex shops in the locality is nil." Or: "Taking into account article 10 and article 1 of the First Protocol and doing the best we can, we think that the appropriate number is nil." Would it have been sufficient to say that they had taken Convention rights into account, or would they have had to specify the right ones? A construction of the Human Rights Act which requires ordinary citizens in local government to produce such formulaic incantations would make it ridiculous. Either the refusal infringed the respondent's Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol.
14. In the Denbigh High School case, the Court of Appeal likewise quashed the decision of a school not to allow a pupil to wear a religious form of dress on the ground that it had arrived at its decision on grounds which did not sufficiently show consciousness of the pupil's Convention right to manifest her religion. As in this case, the Court of Appeal did not say that the school had actually infringed her Convention right to wear the dress. It demanded only that the school demonstrate a correct process of reasoning. Lord Bingham of Cornhill said (at pp 115-116):
15. As Lord Bingham noted, some Convention rights may have a procedural content; most obviously article 6, but other rights as well. In such cases, a procedural impropriety may be a denial of a Convention right. Thus in Hatton v United Kingdom (2003) 37 EHRR 28, an article 8 case, the ECHR considered not only the effect on the applicant's private life but whether he had had a fair opportunity to put his case. In such cases, however, the question is still whether there has actually been a violation of the applicant's Convention rights and not whether the decision-maker properly considered the question of whether his rights would be violated or not.
16. The Court of Appeal, as I have said, did not decide whether refusal of a licence was a violation of the respondent's Convention rights or not. Weatherup J decided that it was not. I agree. If article 10 and article 1 of Protocol 1 are engaged at all, they operate at a very low level. The right to vend pornography is not the most important right of free expression in a democratic society and the licensing system does not prohibit anyone from exercising it. It only prevents him from using unlicensed premises for that purpose. Even if the Council considered that it was not appropriate to have a sex shop anywhere in Belfast, that would only have put its citizens in the same position as most of the rest of the country, in having to satisfy their demand for such products by internet or mail order or going to more liberally governed districts like Soho. This is an area of social control in which the Strasbourg court has always accorded a wide margin of appreciation to member States, which in terms of the domestic constitution translates into the broad power of judgment entrusted to local authorities by the legislature. If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights. That was not the case here and I would therefore allow the appeal and dismiss the application for judicial review.
LORD RODGER OF EARLSFERRY
17. I agree that the appeal should be allowed for the reasons given by my noble and learned friend, Lord Hoffmann. I add only a few observations on the Court of Appeal's conclusion that the Council's decision should be quashed because they failed to consider the human rights issue properly.
18. The amended Order 53 statement on behalf of the applicant, Miss Behavin' Ltd, indicated that relief was sought on two broad grounds. The first related to natural justice. The second claimed that the Council's decision was "illegal" inter alia because it turned upon a decision that the appropriate number of sex establishments in the relevant locality was nil, "which was in breach of the European Convention on Human Rights". Two of the supposed reasons advanced by the applicant related to article 10 of the Convention and one related to article 1 of protocol 1.
19. Mr Larkin QC, who appeared for the applicant, acknowledged that if he could not win on article 10 then he could not win at all on human rights. So he concentrated on article 10. In considering the position, I assume, without deciding, that the idea of freedom of expression in article 10(1) is wide enough to cover the use of premises to sell pornographic books, etc. Again, since the contrary was not suggested, I proceed on the basis that in an appropriate case it may be necessary for a council to restrict this use of premises in order to protect health or morals, as envisaged in article 10(2). The applicant's initial position, at least, was that in the circumstances of this case, however, a restriction in the form of a refusal of a licence was not justified.
20. In the Order 53 statement the first article 10 reason for illegality was said to be that the denial of a licence amounted to a disproportionate interference with the applicant's right to freedom of expression. The second was that the Council's decision was disproportionate since they were empowered, when granting a licence, to apply conditions which would have met their concerns, but they declined to do so. Before the House Mr Larkin presented no argument in support of either of these reasons. Matters of procedure were the order of the day.
21. Defects in procedure are, of course, very often a good reason for quashing a decision and requiring the relevant body to reconsider it. In its Order 53 statement the applicant mentioned various concerns about the procedure which the Council had adopted, but it did not suggest that any procedural failing had given rise to a breach of article 10. So far as article 10 was concerned, the applicant relied on the effects of the refusal of a licence: it meant that the applicant could not sell its books etc in its shop in Gresham Street in Belfast and such a restriction was unnecessary for the protection of morals in a democratic society.
22. Dealing with the issue as one of substance rather than procedure, Weatherup J concluded that the refusal of a licence had not violated any right to freedom of expression which the applicant might have under article 10. So he upheld the Council's decision. The Court of Appeal reversed him. They held that, since the Council had not taken the applicant's right to freedom of expression into account when reaching their decision, it would have to be quashed, unless the court could say that the Council would have reached the same decision if their deliberations "had taken place on an informed basis, taking into account the appellant's convention rights".
23. The basis for the applicant's contention that the Council's decision to refuse it a licence was illegal because of a violation of article 10 must be section 6(1) of the Human Rights Act 1998. In terms of that subsection the Council's refusal was unlawful if it was incompatible with the applicant's right to freedom of expression. In other words, if their refusal was disproportionate - because it went too far in interfering with the applicant's right to sell its books or films - then it was unlawful. In that event it would still have been unlawful however much the Council had analysed and agonised over the applicant's right to freedom of expression before refusing the licence. Equally, if the refusal did not interfere disproportionately with the applicant's right to freedom of expression, then it was lawful for purposes of section 6(1) - whether or not the Council had deliberated on that right before refusing.
24. This is just to apply what was said by Lord Bingham of Cornhill and Lord Hoffmann in R (SB) v Governors of Denbigh High School  1 AC 100, 114E-116H, paras 26-31, and 125D-126C, paras 66-68. The House had, of course, already adopted much the same approach when carrying out the related function of considering the proportionality of legislation. What matters is its impact in the relevant circumstances, not the quality of the debate which preceded its enactment, perhaps many years before. In Wilson v First County Trust Ltd (No 2)  1 AC 816, 843F-844A, Lord Nicholls of Birkenhead said:
Similarly, Lord Hobhouse, at p 866F-H, para 144, emphasised that the question of justification and proportionality has to be answered by reference to the time of the events to which the statutory provision was being applied:
25. On behalf of the Council Mr Gordon QC emphasised that the applicant had not alleged that any of the provisions on the licensing of sex establishments in Schedule 2 to the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 was incompatible with the Convention. So its provisions must be regarded as having appropriately balanced the competing interests for Convention purposes, even though the Order was passed some fifteen years before the 1998 Act came into force. It followed, he submitted, that any decision duly taken by a council applying the Order would be compatible with the right to freedom of expression of any applicant for a sex establishment licence. Such an approach may have its attractions in practice, but the court must always keep in mind that it is not concerned with generalities about the legislation in question, but with whether the effect of the council's exercise of its statutory powers in the particular circumstances was in fact compatible with the Convention rights of the applicant for a licence.