| HUMAN RIGHTS — Rights to freedom of expression and peaceful enjoyment of possessions — Interference with — Refusal of sex establishment licence — Applicant’s Convention rights not considered — Decision to refuse licence not itself violating rights — Whether should be quashed — Human Rights Act 1998, Sch 1, Pt I, art 10, Pt II, art 1
LICENSING — Sex establishment — Objections — Licence refused — Whether licensing authority wrong to consider objections made after expiry of 28-day period — Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985, Sch 2, para 10(15)(16)
Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19
HL(NI): Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Mance and Lord Neuberger of Abbotsbury: 25 April 2007
A licensing authority, in refusing an application for a sex establishment licence, had been entitled to take objections and representations made after the expiry of the prescribed 28-day period into account. Where it had acted fairly and properly exercised its powers its decision was not vitiated by failure to refer specifically to the applicant’s Convention rights.
The House of Lords so held in allowing an appeal by Belfast City Council from the Court of Appeal in Northern Ireland (Sir Brian Kerr LCJ, Sheil LJ and Hart J) [2006] NI 181, which had allowed an appeal by the applicant company, Miss Behavin’ Ltd, from Weatherup J. The judge had dismissed its application for judicial review of the council’s refusal to grant it a licence.
LORD HOFFMANN said that in arriving at its decision to refuse the company a licence the council appeared to have considered representations and objections made outside the 28-day period prescribed by para 10(15) of Schedule 2 to the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 (which prescribed a system of licensing identical to that in the Local Government (Miscellaneous Provisions) Act 1982). In his Lordship’s view, a licensing authority had a discretion to consider late objections, to which the applicant should have an opportunity to comment. As to the substance of the decision, the judge and the Court of Appeal had agreed that the council had acted fairly and properly exercised its powers under the Order. The Court of Appeal, however, had said that the company’s Convention rights had been violated by the way in which the council had arrived at its decision in that it had not shown that it had been conscious of the rights that were engaged, namely the company’s rights to freedom of expression and to the peaceful enjoyment of its possessions (art 10 of the Convention and art 1 of the First Protocol). Assuming that those rights were engaged, the court’s approach was contrary to the reasoning in R (SB) v Governors of Denbigh High School [2007] 1 AC 100. If the refusal of a licence had not in fact infringed the company’s Convention rights it was immaterial that the council had not specifically referred to them.
LORD RODGER, BARONESS HALE, LORD MANCE and LORD NEUBERGER delivered concurring opinions.
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Appearances: Richard Gordon QC (of the English Bar), John O’Hara QC (of the Northern Ireland Bar) and David Scoffield (of the Northern Ireland Bar) (Director of Legal Services, Belfast City Council) for the council; John F Larkin QC and Mark Reel (both of the Northern Ireland Bar) (Fox & Associates, Belfast) for the company.
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