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

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    63.  The Committee met on 18th November 2002 in order to consider the six applications. The respondent had been invited to attend this meeting in order to present arguments as to why there should be a change in the nil determination - i.e. the determination that the appropriate number of sex establishments in the locality should be nil - and why the Application should succeed. The meeting was abortive for present purposes, because of the respondent's expressed concern that certain documents had not been disclosed. Accordingly, it was adjourned to 2nd December 2002.

    64.  Ahead of the 2nd December 2002 meeting, the members of the Committee were supplied with reports from Mr Crothers, a Chartered Surveyor, which dealt with the nature of the Gresham Street locality, and future developments therein, and from Mr Martin, the head of the Council's Building Control Services. Mr Martin referred to earlier decisions of the Council and to the previous meetings of the Committee at which it had been determined that the appropriate number of sex establishments in the Gresham Street locality should be nil. He reported that 70 objections had been received, and that "all but one of the letters was received outside the 28 day period", and he summarised the various different grounds of objection that had been raised. His report concluded by stating that there were two issues for the Committee to decide, namely (1) if the nil determination was confirmed, then the Application should be refused and (2) if the number was to be "other than nil", than it would be necessary to decide which of the applications to grant..

    65.  The meeting of 2nd December overran, and was adjourned to the 11th December 2002, when the Application was considered. The Committee was addressed by Mr Fox, the respondent's solicitor. The minutes record that Mr Fox "enquired whether the objections had been received within the statutory 28 day period". He is also recorded as having suggested that the Committee reconsider and reverse the earlier nil determination, and having said that the respondent "together with those members of the public who used the sex shops which were currently operating illegally in Belfast, were entitled to freedom of expression" under the Human Rights Act 1998.

    66.  The Committee deferred making the decision on the six applications to its meeting of 20th January 2003. The minutes of that meeting reveal that:

    "The Committee gave consideration to the character of each 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, and agreed to recommend that the Council, in its capacity as Licensing Authority, determine that the appropriate number of sex establishments in the Gresham Street and North Street localities be nil. The Committee in recommending that the appropriate number of sex establishments be nil, acknowledged that these recommendations would not necessarily impact on its views in relation to the appropriate number of such establishments in other localities in the City."

    The Committee then went on to consider (and to recommend the refusal of) each of the six applications on their perceived merits; the relevant extracts from the minutes for present purposes are as follows:

    "In considering the above mentioned matter, the Committee was mindful of the Council might, if it so desired, decide that the appropriate number of Sex Establishments in the Gresham Street and/or North Street localities be other than nil. Accordingly, the Committee agreed to consider the merits of each application.

    After discussion, the Committee, having regard to the information contained in the report of the Head of Building Control…agreed to recommend that the Council…refuse the under noted applications…for the following reasons:


    Miss Behavin'

    Unit 2, 2-8 Gresham Street

    (1)  that the applicant had been operating a sex shop without a Licence and in breach of the relevant legislation;

    (2)  that an associated person, convicted of relevant offences, appeared to have an interest in the business carried out under the Licence; and

    (3)  that the company's formation appeared to have been for the purpose of making the application other than in the name of a convicted person."

    67.  The six applications were accordingly remitted to the full Council with a refusal recommendation. For reasons not germane to this appeal, the Council at its monthly meeting of 3rd February 2003 sent back the six applications to the Committee for reconsideration. At its meeting of 10th February 2003, the Committee "affirmed its decisions of 20th January to recommend that the Council…determine that the appropriate number of Sex Establishments in the Gresham Street and North Street localities be nil and refuse the applications in respect of Sex Establishment licences for the reasons outlined in the minutes of that meeting".

    68.  The six applications then came before the Council at its monthly meeting on 3rd March 2003. Before discussing those applications, the Council afforded each of the applicants an opportunity to make representations. On this occasion, the respondent was represented by Mr Reel of Counsel, a summary of whose submissions is contained in the minutes of that meeting. The Council then turned to the various applications, and resolved that "the minutes of the proceedings of the Health and Environmental Services Committee of 10th February 2003 be and they are hereby approved and adopted…". The decision of the Council was communicated to the respondent in a letter dated 13th March 2003.

    The procedural history

    69.  Pursuant to leave given by Weatherup J on 25th June 2003, the respondent applied to the High Court to quash the Council's decision of 3rd March 2003 to refuse the Application. The respondent's case was based on a number of grounds, only two of which are now relevant, namely: (1) the Council (through the Committee) ought not to have taken into account the 69 objections which were out of time, or in the alternative ought not to have taken them into account without first considering whether to exercise their discretion to do so; (2) the decision of the Council was flawed in that it infringed the respondent's rights under article 10 of the European Convention on Human Rights ("Article 10") and under article 1 of the first Protocol to the Convention ("Article 1 of the First Protocol").

    70.  This application came before Weatherup J who dismissed it on all grounds - see [2004] NIQB 61. The respondent appealed to the Court of Appeal, who, on 15th September 2005, allowed the appeal - see [2005] NICA 35. On the first issue, the majority, Kerr LCJ and Sheil LJ, held that it was, in principle, open to the Council to take into account late objections, but their decision was flawed because the Committee had not expressly considered and determined whether or not to exercise its discretion to take the late objections into account. Hart J held that, on a true construction of paragraph 10, it was not open to the Committee to have taken into account late objections at all. The Court of Appeal unanimously considered that the Committee should have taken into account the respondent's rights under Article 10 and under Article 1 of the First Protocol, and that for those reasons also, the respondent should succeed. Accordingly, the Court of Appeal decided that the Council's refusal of the Application should be quashed.

    The late notices of objection

    71.  The first question is whether a council to whom an application for a sex establishment licence is made is entitled to take into account a late objections, that is objections received after the 28-day period referred to in paragraph 10 (15). It would, in my judgement, be unrealistic and unjust if a council were absolutely precluded from taking into account such objections. If an objection which revealed to a council for the first time certain highly relevant information was received one day late, it would be a little short of absurd if it could not be taken into account. It might reveal, for instance, that a family with a large number of small children had moved into the flat above the subject property, or that the applicant had a string of relevant convictions. In such cases, it would be contrary to the purpose of the 1985 Order, and to the public interest generally, if the council was obliged to ignore the information. Furthermore, it would be the duty of council officers to open and read any letter received; such an officer would be placed in an impossible situation if she or he had read a late letter of objection, with new and important information, but was effectively precluded from communicating this information to Council members.

    72.  Indeed, unless the 1985 Order provided otherwise in very clear terms, it would seem to me that, if a council received significant relevant information in a late objection, there could be circumstances in which its failure to take that information into account would itself be judicially reviewable. Of course, much would depend on the circumstances of the particular case. It may very well be right to disregard a late objection if it was intentionally last minute, or if it was received so late that taking it into account would lead to unfairness to the applicant (because he would not have had the chance to consider it) or to unacceptable disruption to the council's business. Accordingly, one would expect the effect of Article 10 to be that late objections could, but need not, be taken into account.

    73.  In my view, that is indeed the effect of the provisions of paragraphs 10 (15) to (18). Paragraph 10 (18) is merely concerned with identifying what a council is obliged to take into account; it says nothing about what the council is entitled to take into account. Accordingly, nothing in paragraph 10 (18) would exclude the consideration of late objections. Once one appreciates that that is the effect of paragraph 10 (18), the meaning of paragraph 10 (15) seems clear. Its effect is that, if an objector wishes to have his objection taken into account as of right under the terms of the Schedule, then he has to ensure that it is sent to the council within the 28 day period. In other words, what those two subparagraphs are concerned with for present purposes is to make it clear that, if an objection is received within 28 days, the council has an obligation to take it into account, and the objector has a right to expect it to be taken into account. Neither sub-paragraph says anything about the parties' respective rights and duties in relation to a late objection. A late objection is therefore governed by general administrative law principles: it is a matter for the council whether to take it into account, and the court will not interfere with its decision in that regard, save on classic administrative law principles, i.e. unless the decision took into account irrelevant factors or failed to take into account relevant factors or was a decision which no reasonable council could, in all the circumstances, have made.

    74.  It might be said that the notion that the council can take into account late objections is inconsistent with paragraph 10 (16), which appears to require the council to give notice to the applicant of only in-time objections. It does not seem to me that that presents any difficulties. Paragraph 10(16) is just like paragraphs 10 (15) and 10 (18) in that it is only concerned with in-time objections. In the same way as the right and duty to consider late objections are governed by general administrative law principles rather than by paragraph 10, so is the question of whether the contents of late objections have to be communicated to the applicant. In that connection, it seems to me that the answer is clear: if such a late objection is to be taken into account by the council, then the applicant must be informed as to its contents in good time so as to be able to consider it and deal with it appropriately.

    75.  It is right to mention that this point is not without authority. The provisions of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 (which are to all intents and purposes identical to those of Schedule 2 to the 1985 Order) have been considered in a number of cases culminating in Quietlynn Ltd v Plymouth City Council [1988] QB 114. In that case, at 133A-134E, the Divisional Court considered and, in my view rightly, rejected the submission that a council could not take into account late objections.

    76.  That brings me to the second question, namely whether the decision of the Council in the present case was nonetheless flawed because the Committee did not expressly direct its mind to the question of whether or not to take into account late objections. In my judgment, there are two reasons why there is nothing in that point.

    77.  First, on the facts of this case, it seems to me that the Committee could not have reached any conclusion other than that the late objections should be admitted. Given that there is no suggestion of the objections being late for lack of good faith, the only reasons for not admitting the late objections would have been prejudice to the applicant or disruption to the Council's business. Neither suggestion could possibly have been raised in this case, and indeed neither suggestion was raised. The respondent had ample notice of the contents of all 70 objections, and their effect had been fully reported to the Committee. Even if there had been a failure by the Committee to consider the issue, it could not have caused detriment to the respondent.

    78.  Secondly, on a fair reading of the documents, the Committee did in fact properly and sufficiently address the question of whether or not to admit the late objections. As I have mentioned, the Committee had Mr Martin's report which stated in terms that all but one of the objections were received out of time, and the point was specifically raised before the Committee by Mr Fox on behalf of the respondent. In those circumstances, I think it is unrealistic to suggest that the Committee did not effectively address its mind to the question of whether to take into account the late objections. There could have been no point in Mr Martin and Mr Fox referring to the fact that objections had been received late, unless that was a factor to be taken into account. On the facts of this case, at any rate, it seems to me unrealistic, at least in the absence of evidence in support, to conclude that the members of the Committee were unaware of the existence of time limits.

    79.  In some cases, the facts may be such that one would expect fuller consideration to have been given to the issue of whether to consider late objections. Here, however, as already mentioned, there was no question of tactical lateness on the part of the objectors, or prejudice to the respondent or disruption to the Council as a result of taking the late objections into account, so the consideration given to this issue was, in my view, quite sufficient.

    80.  There may well be two other reasons for reaching this conclusion. First, the respondent has effectively waived its right to take the point. It was represented by a solicitor before the Committee and by a barrister before the Council, and they were clearly aware of the fact that 69 of the 70 objections had been received out of time. Yet on neither occasion was it argued that those late objections should not be taken into account. Secondly, even if the Council should not have taken into account the late objections, it appears highly unlikely (to put it at its lowest) that it would have granted the Application if it had disregarded the late objections. Given that these two reasons were only touched on in argument, and do not need to be ruled on in order to determine this appeal, I shall say no more about them.

    81.  Accordingly, in respectful disagreement with the Court of Appeal, I consider that Weatherup J was right to dismiss the respondent's case on this issue.

    Article 10 of the Convention

    82.  My Lords, in my judgment, it is, necessary to answer three questions of principle in relation to the applicability of Article 10 where a council refuses an application for a Licence, and then to apply the answers to those questions to the facts of the present case.

    83.  The first question which has to be considered is whether Article 10 is engaged at all. Mr Richard Gordon QC, who appeared for the Council, contended that it was not. Article 10 provides:

    "Freedom of expression.

    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…

    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and 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 reputation or rights of others…"

    In my judgment, both as a matter of language and as a matter of principle, Article 10 is indeed engaged in this case, albeit at a relatively low level, so far as the proposed use of the premises was for the sale of books, magazines and DVDs and the like. In addition to the respondent's right to seek to disseminate such articles, the compilers, whether they are writers, photographers, film-makers or actors, are entitled to seek to express themselves through the medium of these articles; indeed members of the public wishing to buy and look at these articles have the right to seek to do so. The fact that some people may well find some or all of the articles in question offensive or damaging to public morality is catered for by the second part of Article 10. Like many other fundamental rights, the right to freedom of expression must not be abused and can be subject to appropriate restriction. Indeed, when it comes to restrictions on the dissemination of pornographic material, the margin of appreciation afforded to member states must, it appears to me, be wide.

    84.  Having decided that Article 10 is, in principle, engaged in a case such as this, the second question is how it is engaged. Mr Gordon contended that the sole question of principle is whether the legislation in question, in this case the 1985 Order, complies with Article 10. If it does comply, then it is not open to a disappointed applicant, such as the respondent in the present case, to raise an Article 10 argument in relation to his own particular application. If that is right, then the respondent in the present case has effectively "sold the pass" by not contending that the 1985 Order does not comply with Article 10.

    85.  There is no doubt that in relation to some legislation the approach urged on us on behalf of the Council is appropriate: see, for example, the view of the majority in Kay v Lambeth London Borough Council [2006] 2 AC 465 at paragraph 110. However, that does not seem to me to be the appropriate approach in the present case.

    86.  Kay was a case concerned with the impact of Article 8 (right to respect for private and family life) on the domestic law which gave a public authority landlord an unqualified right to possession of property occupied by temporarily homeless people and by gypsies. By a bare majority, your Lordships decided that, unless it could be shown that the domestic law did not achieve fair balance between the competing interests of occupiers of land and landowners, it would be compatible with Article 8.

    87.  In my judgment, the present case is very different. It is not concerned with the property rights of a local authority, but with the exercise of a licensing jurisdiction which has been delegated by the legislature, through the medium of the 1985 Order, to a local authority which decides to adopt the provisions of Schedule 2. In other words, when exercising its functions under schedule 2, a council is carrying out what may be characterised as a public administrative function; in that capacity, a council should carry out its functions in a manner, and to achieve a result, which is compatible with the Convention. That seems to me to follow from the provisions of section 6 of the Human Rights Act 1998, which renders it "unlawful for a public authority to act in a way which is incompatible with a Convention right".

    88.  The third question to be considered is what the engagement of Article 10 means in practice. In my judgment, it means that any decision reached by a council in relation to an application for a Licence must comply with the Convention, and that, where a decision is challenged in this connection, it is a matter for the court to decide whether it does so comply. That seems to me to follow from the decision of this House in R (SB) v The Governors of Denbigh High School [2006] 2 WLR 719, a case concerned with Article 9 of the Convention.

    89.  In that case, at paragraphs 29 and 30 Lord Bingham of Cornhill said that:

    "29. ….the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's convention rights have been violated. ….

    30. …[T]he court's approach to an issue of proportionality under the convention must go beyond that traditionally adopted to judicial review in a domestic setting… .There is no shift to a merits review, but the intensity of review is greater than was previously appropriate… . The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time… . Proportionality must be judged objectively, by the court."

    To the same effect, at paragraph 68, my noble and learned friend Lord Hoffmann said this:

    "68. …In domestic judicial review, 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. But Art. 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under Art.9 (2)?..."

    Article 9 is very similar to Article 10, both in the nature of the topic with which it is concerned (freedom of thought, conscience and religion, a substantive right), and in the way it is structured (in two parts, the first of which is concerned with identifying the right, and the second of which is concerned with permitted restrictions on the right).

    90.  In my view, therefore, the contention advanced by Mr Larkin QC, on behalf of the respondent (which was accepted by the Court of Appeal), namely that, because Article 10 is engaged, the Council's decision was irretrievably flawed because it failed to take the respondent's Article 10 rights into account when considering the Application, is incorrect. The right issue to be considered, and which is to be determined by the court, is whether, in all the circumstances of this case, the Council's decision to refuse the Application infringed the respondent's Article 10 rights. In connection with that issue, I respectfully agree with the analysis in paragraph 37 and paragraphs 45-47 of my noble and learned friends Baroness Hale of Richmond and Lord Mance, whose speeches I have had the benefit of reading in draft.

    91.  Because the issue involves careful scrutiny by the court of the decision, a council faced with an application for a sex establishment licence would be well advised to consider expressly the applicant's right to freedom of expression, and to take it into account when reaching a decision as to whether to grant or refuse the licence. While the fact that a council has expressly taken into account Article 10 when reaching a decision cannot be conclusive on the issue of whether the applicant's Article 10 rights have been infringed, it seems to me, consistently with what Lord Bingham and Lord Hoffmann said in Denbigh at paragraphs 31 and 68, that where a council has properly considered the issue in relation to a particular application, the court is inherently less likely to conclude that the decision ultimately reached infringes the applicant's rights.

    92.  It is fair to say that it may not always be easy to see, or at least to express in clear terms, how an applicant's Article 10 rights can satisfactorily be weighed against a council's decision to refuse a Licence (or, indeed, could be factored in to a council's decision-making process when deliberating on whether to grant a Licence). In the present case, what was at any rate the primary reason for refusing the Application was the nil determination. It can be said with considerable apparent force that, where a council has made a nil determination in respect of a locality on environmental and social grounds, it is hard to see how the applicant's Article 10 rights could justify the grant of a Licence. I accept that this would be correct in the majority (possibly the great majority) of cases. However, the nil determination is a discretionary, and not a mandatory, ground of refusal, because it is within paragraph 12 (2) (3), not paragraph 12 (1). One can imagine circumstances where, for instance, the demand is so great, the level of objections is so low, the articles proposed to be sold are relatively inoffensive to any but the most prudish, and a nil determination is issued for every locality in the whole city or district, that Article 10 considerations in a particular case could outweigh the effect of the nil determination.

    93.  I turn now to apply these conclusions to the facts of the present case. On a fair reading of the minutes, it seems clear that, in the last two meetings to which I have referred, the Committee decided to recommend rejection of the Application for two reasons; the primary reason was in order to give effect to the nil determination; the second reason, which only applied in the event that the nil determination was either resisted or not put into effect, was that the Application should be refused for the three-pronged reason of the respondent being in breach of the legislation, Mr McCaffrey, who had been convicted of a relevant offence, having an interest in the respondent, and the respondent having been formed in order to make the application in place of Mr McCaffrey.

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