Judgments - Belfast City Council (Appellants) v. Miss Behavin' Limited (Respondents) (Northern Ireland)

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    26.  Of course, where the public authority has carefully weighed the various competing considerations and concluded that interference with a Convention right is justified, a court will attribute due weight to that conclusion in deciding whether the action in question was proportionate and lawful. As Lord Bingham said in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, 116G, para 31:

    "If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger's task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it."

Similarly, having observed that head teachers and governors could not be expected to make decisions with textbooks on human rights at their elbows, Lord Hoffmann observed, at p 126C, para 68:

    "The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law."

    27.  In this case the Council did not weigh the competing human rights and other considerations in that way. So, when deciding whether their refusal of a licence interfered disproportionately with the applicant's right to freedom of expression, the court had to go about its task without that particular kind of assistance. Weatherup J concluded that, having regard to the various features of this particular locality which he mentioned, the refusal of a licence to sell pornography in the applicant's Gresham Street premises did not interfere disproportionately with its right to freedom of expression. Neither the Court of Appeal nor indeed Mr Larkin actually challenged that conclusion on its merits. But, if it is sound - as I believe it is - then the Council's decision was lawful in terms of section 6(1) of the 1998 Act and cannot be quashed on the ground of incompatibility with article 10.

    28.  The Court of Appeal would also have quashed the Council's decision on the separate ground that the applicant's article 10 right was a relevant consideration which the Council had failed to take into account in reaching their decision. The court felt unable to say that, if the Council had taken account of that right, they would have reached the same decision. This is back to a traditional judicial review point - but, significantly perhaps, not one which was advanced by the applicant in its Order 53 statement. At the meeting of the Health and Environmental Services Committee on 11 December 2002 the applicant's representative had referred to the right to freedom of expression of the applicant and of users of sex shops in Belfast. But he does not seem to have developed the point. Nor did the representative who appeared at the full Council meeting on 3 March 2003. Nor again did Mr Larkin in the hearing before the House. All this is scarcely surprising since, in a case like the present, it is hard to see what anyone could have said beyond reciting the value of the right to sell and use the pornographic material. Similarly, the value of that right is all that the Council could have been expected to consider. So, at most, the Council are criticised for failing to take into account what can only be the modest value of that right. The basic pros and cons of having a right to sell and use pornography must surely have been well known, however, to the members of the Council who took the decision. Unlike the Court of Appeal, I am accordingly satisfied that, even if they had had regard to the applicant's article 10 right in formulating their decision, it would still have been the same. There were, in any event, other special factors relating to the applicant which would have justified refusing the licence.

    29.  For these reasons, as well as the others given by Lord Hoffmann, I would allow the appeal and restore the order of Weatherup J dismissing the application for judicial review.

BARONESS HALE OF RICHMOND

My Lords,

    30.  This case must take the prize for the most entertaining name of any that have come before us in recent years. It also takes the prize for exemplifying two of the most important questions which have so far arisen under the Human Rights Act 1998. But since the decision of the Northern Ireland Court of Appeal in this case, both have been effectively answered by this House, one in the case of R (SB) v Governors of Denbigh High School [2007] AC 100, the other in the case of R (Huang) and R (Kashmiri) v Secretary of State for the Home Department [2007] UKHL 11.

    31.  The first, and most straightforward, question is who decides whether or not a claimant's Convention rights have been infringed. The answer is that it is the court before which the issue is raised. The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account. If it were otherwise, every policy decision taken before the Human Rights Act 1998 came into force but which engaged a convention right would be open to challenge, no matter how obviously compliant with the right in question it was. That cannot be right, and this House so decided in R (SB) v Governors of Denbigh High School [2007] AC 100, in relation to the decisions of a public authority. To the same effect were Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 and R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246, in relation to legislation passed before the 1998 Act came into force. In each of those cases, the House considered the justification for the policy or legislation in question on its merits, regardless of whether the decision-maker had done so.

    32.  The second, and more difficult, question is the weight to be accorded to the views of the various public authorities involved in making the decision which is alleged to have infringed convention rights. The recent decisions of this House in R (Huang) and R (Kashmiri) v Secretary of State for the Home Department [2007] UKHL 11 address this very point.

    33.  In this case, there are arguably four levels of such decision making. The first is the decision of the Northern Ireland legislature permit local authorities to prohibit the operation of sex establishments without a licence. No-one has suggested that this decision in itself infringed convention rights. Control of the use of land is permitted under Article 1 of Protocol 1 to the Convention and restrictions on freedom of speech are permitted under Article 10. Having such a licensing regime is clearly consistent with the convention rights, provided that it is operated consistently with those convention rights. The question is how it is operated.

    34.  The second level is the decision of Belfast City Council to adopt the licensing regime in its area. No-one has suggested that this decision in itself infringed convention rights, for the same reasons that the legislation itself does not do so.

    35.  The third level is the decision of Belfast City Council that there should be no sex shops in this particular locality. That might have been taken as a policy decision which would dictate all subsequent decisions on individual applications. However, the legislation, as explained by my noble and learned friend, Lord Neuberger of Abbotsbury, indicates that the decision should be made in relation to each individual case. An application may - but not must - be turned down on the basis that the authority considers that there already are enough sex shops in the locality, enough being capable of being none: see Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985, Schedule 2, para 12(2), (3)(c) and (4). The decision that the appropriate number in this locality was none appears to have been taken in response to individual applications rather than as a general policy. So, perhaps unusually, this third level of decision making merges into the fourth.

    36.  The fourth level is the decision on the individual application. Mr Gordon QC, on behalf of the Council, argues that this decision cannot be attacked if the existence of the licensing regime itself cannot be attacked. I cannot agree. I do agree, of course, that there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in Kay v Lambeth London Borough Council [2006] 2 AC 465. At issue there was whether a landowner with the right to possession of land (in that case a public authority, but the same question would arise with a private landowner whose rights are protected under Article 1 of Protocol 1) could be deprived of that right because to enforce it against the particular individual occupier would be a disproportionate interference with the occupier's right to respect for his home under Article 8 of the Convention, even though he had no right in domestic law to be or to continue in occupation. The whole history of housing law since rent control began has been an attempt by the legislature to strike just that balance. In those circumstances, the courts are entitled to say that unless the legislation itself can be attacked, the issue cannot be raised in an individual case.

    37.  But this is not a case in which the legislation itself attempts to strike that balance. The legislation leaves it to the local authority to do so in each individual case. So the court has to decide whether the authority has violated the convention rights. In doing so, it is bound to acknowledge that the local authority is much better placed than the court to decide whether the right of sex shop owners to sell pornographic literature and images should be restricted - for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of others. But the views of the local authority are bound to carry less weight where the local authority has made no attempt to address that question. Had the Belfast City Council expressly set itself the task of balancing the rights of individuals to sell and buy pornographic literature and images against the interests of the wider community, a court would find it hard to upset the balance which the local authority had struck. But where there is no indication that this has been done, the court has no alternative but to strike the balance for itself, giving due weight to the judgments made by those who are in much closer touch with the people and the places involved than the court could ever be.

    38.  My Lords, there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast City Centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law. Far too often it entails the sexual exploitation and degradation of women for the titillation of men. But there is always room for debate about what constitutes pornography. We can all think of wonderful works of literature which once were banned for their supposed immorality (my example would be The Well of Loneliness by Radclyffe Hall rather than Lady Chatterley's Lover, but the point is the same). No-one is suggesting that pornographic literature and images (always supposing that it is lawful) should be inaccessible to those in Belfast who wish to gain access to them. The authors can publish their work in any other medium should they wish to do so, and the public can gain access to them there. Indeed, the City Council has not, as far as we know, refused to license sex establishments elsewhere in the city. There were good reasons for refusing to license establishments in this street and even better ones for refusing this particular company a licence. The suggestion that this is a disproportionate limitation on the company's right to freedom of expression is to my mind completely untenable. The same applies, a fortiori, to the complaint under Article 1 of Protocol 1.

    39.  For these reasons, and I believe in agreement with all of your lordships, I would allow this appeal and restore the decision of Weatherup J.

LORD MANCE

My Lords,

    40.  I have had the advantage of reading in draft the opinions of my noble and learned friends, Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury. For the reasons given by Lord Hoffmann and Lord Neuberger, there is nothing in the complaint that the Council should have declined to consider the late representations and objections.

    41.  In agreement with other members of the House, I would reject the Council's submission that, if the respondent had any cause for complaint, it was inherent in the scheme of the relevant legislation so that, in the absence of any challenge to that scheme, the appeal should succeed on that ground alone. The present scheme is not analogous with Kay v. Lambeth L.B.C. [2006] UKHL 10; [2006] 2 AC 465. Here, the Council had a licensing jurisdiction, in the exercise of which it was both able and bound to act compatibly with the Convention: cf section 6 of the Human Rights Act 1998.

    42.  I can for present purposes proceed on the basis that both freedom of expression under article 10 of the Convention and the enjoyment of possessions under Protocol 1 were engaged by the exercise of that jurisdiction, albeit (as others have observed) hardly in a very compelling sense. But both those interests may be restricted, in the former case for inter alia the protection of health or morals and of the rights of others and in the latter case in accordance with the general interest. I agree that any complaint about restriction of the latter interest, assuming that it exists, can add nothing in the present context to any complaint about restriction of the former article 8 interest.

    43.  The Court of Appeal cited Re Connor's Application [2004] NICA 45 for the uncontroversial proposition that the evaluation of the interests protected by the Convention was primarily one for the Council (paragraph 55). But it went on to rely on that case (decided in relation to article 8) for the proposition that:

    "Where no appraisal of the relevant interests had been made, the court could only conclude that the interference was justified if, on analysis, it determined that it was inevitable that the decision-maker would have decided that the article 8 rights of the individual would have to yield to protect the wider interests outlined in article 8(2)".

The Court of Appeal went on to apply that proposition in relation to both article 1 of the First Protocol (paragraph 56) and article 10 of the Convention (paragraph 63). It said (paragraph 56):

    "The interference with the appellant's rights can only be justified, therefore, if either the public authority has decided that the general interest demands it or it is inevitable that it would have so decided had it been conscious of the interference with the appellant's rights that refusal of the application entailed."

    44.  Authority now shows that this is not the correct approach. The court's role is to assess for itself the proportionality of the decision-maker's decision: R (SB) v. Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100. The court will not require a decision-maker to put itself through the hoops of a complex series of questions such as the Court of Appeal suggested in that case ([2005] EWCA Civ 199; [2005] 1 WLR 3372). In the Denbigh case, Lord Bingham rejected the "new formalism" that the Court of Appeal's approach would have involved, and said that "what matters in any case is the practical outcome, not the quality of the decision-making process that led to it" (paragraph 31).

    45.  Lord Hoffmann also contrasted the position regarding judicial review, where "the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer" (Denbigh, paragraph 68). This is not of course to say that the Convention contains no procedural rights; it clearly does - articles 5 and 6 contain the most obvious examples - but there is authority in the European Court of Human Rights that other provisions can implicitly involve ancillary procedural rights, e.g. article 8: cf McMichael v. United Kingdom (24th February 1995, paragraphs 85-93; Buckley v. United Kingdom (25th September 1996, paragraph 76) and Chapman v. United Kingdom (2001) 33 EHRR 399, paragraph 92).

    46.  The question may arise how the approach described in paragraph 44 above inter-relates with the courts' recognition of a "discretionary area of judgment" within which "the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention": R v. DPP, Ex p Kebilene [2000] 2 AC 326, 381B-D per Lord Hope; A v. Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, paragraphs 37-42 per Lord Bingham. The existence of a discretionary area of judgment means necessarily that there may be decisions which a court could regard as proportionate, whichever way they went. Lord Hope's dicta in Kebilene postulate a context in which the decision-maker has reached a "considered opinion", whatever the formal structure of his decision-making process. But, what is the position if a decision-maker is not conscious of or does not address his or its mind at all to the existence of values or interests which are relevant under the Convention?

    47.  The court is then deprived of the assistance and reassurance provided by the primary decision-maker's "considered opinion" on Convention issues. The court's scrutiny is bound to be closer, and the court may, as Baroness Hale observes in paragraph 37 of her opinion, have no alternative but to strike the balance for itself, giving due weight to such judgments as were made by the primary decision-maker on matters he or it did consider.

    48.  In the present case, however close the court's scrutiny, I have no hesitation in concluding that the Council's decision was proportionate (and indeed inevitable) for the reasons relating to both the Council's primary and its secondary grounds for refusal with which Lord Neuberger deals in paragraphs 94 to 96, which are also consistent as I see it with those given by Lord Rodger in his paragraph 28 and Baroness Hale in her paragraph 38. I too would therefore allow this appeal and restore the decision of Weatherup J dismissing the respondent's application.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

    49.  This appeal concerns an application for a sex establishment licence in respect of Unit 2, 2-8 Gresham Street, Belfast ("the premises"), made to the Belfast City Council ("the Council") under the provisions of the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 (1985 No. 1208 NI15), which I shall refer to as "the 1985 Order".

    Schedule 2 to the 1985 Order

    50.  Article 4 of the 1985 Order provides that a council "may resolve that Schedule 2 is to apply to its District". It then sets out the procedure to be adopted in such an event. Schedule 2 to the 1985 Order is headed "Licensing of Sex Establishments", and references hereafter to paragraphs are to paragraphs of that Schedule.

    51.  Paragraph 2 provides that ""sex establishment" means a sex cinema or a sex shop". The expression "sex shop" is defined in paragraph 4(1) as including premises:

    "used for a business which consists to a significant degree of selling, hiring, exchanging, lending, displaying or demonstrating -

    (a)  sex articles; or

    (b)  other things intended for use in connection with, or for the purpose of stimulating or encouraging -

    (i)  sexual activity;

    (ii)  acts of force or restraint which are associated with sexual activity.

By virtue of paragraphs 4(3) and (4), a "sex article" includes "any article containing or embodying matter to be read or looked at" and "any recording of vision or sound".

    52.  Paragraph 6 precludes the use of any premises "in any district in which this Schedule is in force" "as a sex establishment except under and in accordance with the terms of a licence granted under this Schedule by the council for the district". Paragraph 7 enables a council "to waive the requirement of a licence" where "to require a licence would be unreasonable or inappropriate". Paragraph 8 empowers the council to grant, renew or transfer licences, and paragraph 9 is concerned with the duration of licences.

    53.  Paragraph 10 deals with applications for licences. Sub-paragraphs (1) to (6) set out procedural requirements to be satisfied by applicants for licences. Sub-paragraphs (7) to (14) are concerned with publicising the existence of the application, and require an applicant to advertise his application in a newspaper within seven days of it having been made, and to display a notice of the application in an appropriate location "for 21 days beginning with the date of the application".

    54.  Sub-paragraphs (15) to (18) of paragraph 10 are in these terms so far as relevant:

    "(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 in general terms the nature of representation not later than 28 days after the date of the application.

    (16)  Where the council receive 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.

    (17)  …

    (18)  In considering any application for the grant…of a licence the council shall have regard to…any representations of which notice has been sent to it under sub-paragraph (15)"

    55.  Paragraph 10 (19) requires a council to give an applicant "an opportunity of appearing before and of being heard by the council…before refusing to grant a licence, to the applicant…".

    56.  Paragraph 12 (1) sets out the grounds upon which a council "shall refuse an application for the grant…of a licence". They include cases where the applicant is under 18, has had a licence revoked, has been refused a licence within the past 12 months, or is a foreign company. Paragraph 12 (2) provides that a council "may refuse" to grant a licence on the grounds set out in paragraph 12 (3), which are:

    "(a)  that the applicant is unsuitable to hold the licence by virtue of having been convicted of an offence or for any other reason;

    (b)  that if the licence were to be granted…the business to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant…of such a licence if he made the application himself;

    (c)  that the number of sex establishments in the relevant locality of the time the application is made is equal to or exceeds the number which the council considers is appropriate for that locality;

    (d)  that the grant…of the licence would be inappropriate, having regard -

    (i)  to the character of the relevant locality; or

    (ii)  to the use to which any premises in the vicinity are put; or

    (iii)  to the layout, character or condition of the premises…in respect of which the application is made."

    57.  Paragraph 12 (4) provides that "nil may be an appropriate number for the purposes of sub-paragraph (3) (c)". Paragraph 12(5) identifies "the relevant locality" as "the locality" in which the premises the subject of the relevant application "are situated".

    58.  Paragraph 20 states that a person who "knowingly uses, or knowingly causes or permits the use of, any premises…contrary to paragraph 6…shall be guilty of an offence". Paragraph 26 is concerned with the right of appeal of a disappointed applicant for a licence. It entitles such a person to appeal to the County Court within 21 days of the licence being refused, save where the ground of refusal is under paragraph 12 (3) (c) or (d).

    The facts

    59.  In 1988, the Council resolved, pursuant to article 4 (1) of the 1985 Order, that Schedule 2 should apply to its district. In 1989, when considering an application for a sex establishment licence in respect of a property in the same locality as the premises ("the Gresham Street locality"), the Council had determined that the appropriate number of sex establishments in that locality should be nil, a view that the Council revisited and confirmed in February 1997.

    60.  On 13th May 2002, the respondent, Miss Behavin' Limited, applied to the Council for a sex establishment licence (a "Licence") to use the premises as a sex shop. This application ("the Application") was duly advertised, and resulted in 70 notices of objection ("objections"), only one of which was received within the 28 day time limit stipulated in paragraph 10 (15). During September and October 2002, the Council informed the respondent of these objections, together with the grounds upon which they were based.

    61.  At the time of the Application, the premises had been operated as a sex shop without a Licence, and therefore unlawfully, for a period before February 2001. During that period, the premises had been leased to a Mr Patrick McCaffrey. In 2001, he was successfully prosecuted for a number of offences arising out of his business at the premises. About one month prior to the Application, the respondent was incorporated as a limited company with an issued capital of 99 shares, of which 40 had been allocated to Mr McCaffrey.

    62.  Together with five other applications for sex establishment licences in the Gresham Street locality and a neighbouring locality, the Application came before the Council's Health and Environmental Services Committee ("the Committee"), whose functions include the consideration of such applications with a view to recommending to the full Council whether they should be granted or refused.

 
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