HC Deb 23 March 1981 vol 1 cc688-704

'(1) From and after the passing of this Act, any person who operates or who seeks to operate premises as a sex shop or a shop dealing in sex magazines or sex aids will be required to obtain planning permission from the local planning authority for use of the premises for that purpose.

(2) In considering an application for planning permission for such use the local planning authority shall have regard to the interests of amenity and to the proximity of the premises to schools, churches and other shops.

(3) If the local planning authority allows the application, it shall have the power to grant the permission subject to such conditions as to access, display and external advertising as it may deem appropriate.'.—[Mr. Gordon Wilson.]

Brought up, and read the First time.

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Mr. Gordon Wilson

I beg to move, That the clause be read a Second time.

The new clause is in the names of the hon. Members for South Angus (Mr. Fraser), Dundee, West (Mr. Ross) and myself. Significantly those names are drawn from constituencies in Dundee or in close proximity to Dundee, where the establishment of a sex shop has aroused controversy. The object of the new clause it to try to introduce some local control against the spread of this new manifestation.

I point out to the hon. Member for South Ayrshire (Mr. Foulkes) and others who might be interested in the easy access to such places that that problem does not solely exist in Dundee. In Glasgow, a sex shop has recently been subject to a police raid. One is to be set up in Leith, and Aberdeen must not be excluded, as Scotland's boom town. It, too, is to have a sex shop. In most of those communities, there has been considerable opposition to the establishment locally of a sex shop, together with doubts about the lack of control which local authorities may have over those manifestations. Anyone who has seen Soho knows that if one has that sort of business in large numbers or with ostentatious advertising, an abuse may develop. Significantly, there is an early-day motion on the Order Paper signed by about 66 Members, because in England too, there is considerable opposition to that new sort of business.

Sex shops are one sort of import which Scotland does not need. I am not sure what I dislike most about them. It could be the invasion and cheapening of human sexuality. That is one aspect to which one could take exception. One could also take strong exceptions to the rip off and profiteering associated with those businesses, because the goods on sale are apparently sold at high prices. The shops are taking advantage of human nature.

I hope that the House will agree that there is now no method in our planning law by which a local authority can exercise any sort of planning control. If a building not so far used as a shop is to be converted into a sex shop, an application for change of use is required. On the other hand, if premises had received planning permission for use as a shop and someone later intended to set up a sex shop there, it would not be necessary for an application to be made to the local authority for a change of use. In other words, the use which had been given for the premises for the purpose of a shop would apply to the specific use of such premises for a sex shop. Therefore, there is a gap in the planning law.

It is objectionable that even if there were to be no opposition in principle to such establishments, there can be no control at local level over the location, the placing of the enterprise and its advertising. In Dundee, for example, some parts of the community feared that the sex shop in Strathmartine Road was very close to schools and churches. I received a letter from St. John's school council, which said: The School Council is extremely concerned about the opening of a sex shop within the school catchment areas of St. John's St. Peter and Paul and Rockwell Primary and High Schools. Objections on behalf of parents and teachers have been submitted to the Lord Provost who has confirmed that the District Council is doing everything in its power to stop this development. The council has asked me to try to introduce legislation to give local authorities the power to decide the type of commercial ventures that should be allowed to operate within their boundaries.

Recently, there has been a series of prosecutions of newsagents who stock sex magazines. There is a problem over the criminal powers under the Burgh Police (Scotland) Act 1892 and in relation to certain offences being charged under common law. However, the new clause does not seek to invoke the criminal law.

On Tuesday 17 February, I asked the Under-Secretary of State about planning powers, and after dealing with offences relating to display, publication, distribution and sale of indecent or obscene material, he said: Planning controls would apply only if a new building was involved."—[Official Report, 17 February 1981; Vol. 999, c. 108.] As I have said, the controls apply also to a complete change of use, so I do not believe that the Minister's reply dealt satisfactorily with the situation.

Dundee district council is frustrated about the position. It was criticised earlier, but it responded in this instance to the objections raised. On Tuesday 10 March, the Courier and Advertiser stated: The sex shop at 116 Strathmartine Road, Dundee, is to open today. There appears to be little the district council can do about it, apart from ask the proprietor if he would move to another site, away from houses. Mr. Alistair Barrie, chief planning officer, may tell the shopowner he believes alterations to the shopfront should have had planning permission. He may also negotiate to see if the district council can offer 'more suitable' premises. That is an interesting comment. The article also stated that Mr. James Hoey, the director of administration, would be writing to COSLA to approach the Secretary of State to amend the regulations about such shops.

Under our existing planning law there is no provision for local decisions on such facilities. We need legislation on change of use. The new clause is not revolutionary. It merely seeks to fill a gap in our planning law that has recently become apparent. There is considerable opposition to sex shops and a demand for local control.

Mr. Robert Maclennan (Caithness and Sutherland)

Has the hon. Gentleman considered that sex magazines and sex aids are terms of art? The clause raises problems of interpretation. Shops scattered throughout Scotland deal in magazines which may be considered by some to be sex magazines. If the hon. Gentleman does not intend that newsagents carrying explicit sex material should be caught by the provision, he will agree that there is an important problem of definition.

Mr. Wilson

Definition in these matters is always difficult. The problem with obscene publication prosecutions is how to define the material on display. As the hon. Member for Abingdon (Mr. Benyon) said when we were debating the Indecent Displays (Control) Bill, one can recognise an elephant but cannot always describe it. Nevertheless, definition has been attempted under the Burgh Police (Scotland) Act.

I object to explicit magazines being displayed in newsagents where children especially may see them, but the clause does not intend to deal with that problem, which is the subject of the Indecent Displays (Control) Bill. The clause deals with premises that advertise themselves explicitly as sex shops. There should, therefore, be no difficulty. Premises used for the sale of general goods or magazines are not covered by the proposal, but explicit magazines could possibly be dealt with under the criminal sanctions. The new clause is merely directed to change of use for planning purposes. The criminal law is unsatisfactory, but the new clause does not deal with that. We wish to give powers to local authorities to have some control over these new business ventures.

Mr. Foulkes

If the provision is to apply only to premises that call themselves sex shops, those seeking to open such shops will find an appropriate euphemism, just as massage parlours are a euphemism for an activity that is rather more than massage.

Mr. Wilson

I am sure that the hon. Gentleman's experience comes to him at second hand, perhaps through reading explicit magazines. I hurriedly withdraw that remark, but I do not think his point holds water. We are attempting to deal with a specific manifestation. Definitions can always be questioned, but I hope that my explanation has defined the basis on which planning authorities can deal with the matter. Elected councillors would be able to take the decisions, subject to the usual appeals under planning legislation.

Subsection (1) of the new clause states: From and after the passing of this Act, any person who operates or who seeks to operate premises —that would cover existing premises— as a sex shop or a shop dealing in sex magazines or sex aids will be required to obtain planning permission from the local planning authority for the use of the premises for that purpose. Even if premises had planning permission for use as a shop, they would need planning permission for the purposes detailed.

Mr. Bill Walker

Would contraceptives be considered sex aids? If so, how would the proposal affect family planning?

Mr. Wilson

Contraceptives are an aid to sex and an aid to birth control. I do not expect a problem to arise there.

Again, we are dealing with this not in relation to the criminal law but in relation to planning consent. We are talking about planning permission, not about whether it is legitimate or illegitimate to sell certain items in a given shop. We are providing that if it is a shop specialising in explicit sexual material it shall require permission or a licence from the local authority to operate. That is the first part of the new clause.

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Secondly, when a local authority receives an application for planning permission for such a use, it shall have regard to the interests of amenity". I understand that that is normally included as part of the duty of a local authority and is normally specified in legislation on planning matters. I have added a specific reference to the proximity of the premises to schools, churches and other shops. The "other shops" may be premises where children perhaps gather. For example, there may be a shop selling filled rolls nearby, which children regularly visit.

The last part of the new clause is perhaps the most important. It specifies: If the local planning authority allows the application, it shall have the power to grant the permission subject to such conditions as to access, display and external advertising as it may deem appropriate. Many people may take exception not to the existence of a sex shop per se, but only to one which explicitly advertises its wares in a manner that some would consider obscene or corrupting to young people. Here again, Soho provides a very strong example.

Mr. William McKelvey (Kilmarnock)

Perhaps this is the key to the whole issue. Perhaps we are being taken through the wrong procedure with regard to planning, when we should be considering whether legislation is required at the licensing level. That would cover all these points, particularly in regard to the character of the person applying for the licence. This type of legislation is fraught with all kinds of dangers. Total bans could be placed by some authorities when the public did not necessarily want such bans.

Mr. Wilson

If that were the case, the council would have to face the consequences of what it had done in not providing sex shops or whatever was required. I am saying that the control should be exercised at local level and that no such provision at present exists.

The hon. Gentleman says that it should perhaps be done by way of licensing, and in relation also to the character of the person who seeks to operate such a shop. That is a valuable point, but a person of good character may operate such a shop in a way which may still provide difficulties in relation to external advertising.

The hon. Gentleman also said that this was perhaps not the vehicle by which the control should be exercised. I emphasise that it is the only vehicle open to us under the Bill. If one does not seize the opportunity when one can, one may end up with no control whatever, so that the rip-off, the profiteering and the obscene displays might continue for two, three or four years before there is a Bill capable of amendment to deal with the problem.

It is also suggested that the problem could be dealt with by way of the criminal law. Again, that is not possible under the legislation before us.

Subsection (3) of the new clause allows local planning authorities the power to grant permission, but also to lay down conditions as to access, display and external advertising". That is extremely important, as it would make it impossible for a person running such premises to put on displays which were objectionable if that had been made a formal condition. Assurances have been given in relation to such premises that there will be no adverse external advertising. But an assurance is worth something only if it is kept voluntarily by the person concerned. There are no controls which would allow intervention by any external agency unless the external display was so pornographic as to be caught under the criminal law. A great deal of objectionable display would therefore continue.

People are concerned. A new development is taking place. I hope that the House will therefore give the new clause a Second Reading.

Mr. Peter Fraser

Having put my name to the new clause, I listened with the closest attention to the hon. Member for Dundee, East (Mr. Wilson). The case to which he referred in Strathmartine Road certainly caused a great deal of offence to the public in Dundee. It would be wrong of the House to underestimate the strength of feeling in the country, not merely about whether such shops should be prohibited or whether they have a legitimate role and location, but about whether, when a shop exists under the planning laws in a shopping precinct or shopping area in any village in the country, that shop should be able to be transformed without more ado into one which in its external advertising and within its precincts may sell and display the most explicit sexual material.

If, in his new clause, which I support, the hon. Gentleman was proposing the overall prohibition of sex shops, I appreciate that that would be a matter of great concern and should be debated by all hon. Members in the House, and not just by Scottish Members. That would be a considerable step to take and, as the hon. Gentleman has said, it would have considerable implications vis-a-vis the criminal law.

I do not believe that this is a matter that we can avoid with a nudge and a snigger. The public are concerned about it, and it should be dealt with extremely seriously. For example, on looking through the "use classes" order, the public would find that there already existed the most arcane distinctions between the types of use to which land, buildings or property may be put. They would be astonished to discover that although in certain circumstances in which a change of use may be allowed from one type to another planning permission is required, to take a reductio ad absurdum case, under the present law a village grocer's shop may be changed into a sex shop without any control by anyone.

In those circumstances, the House should consider very carefully the situation that has developed. It might be open to question—and it was a reasonable question by the hon. Member for Kilmarnock (Mr. McKelvey)—whether licensing might be a more appropriate route to ensure that development of this type of commercial activity does not cause great offence to the public. I do not dissent from that view. It may well be appropriate to look also at licensing, but there are other areas, such as public houses, where there is dual control. At the moment, if there is a change of use from a shop to a licensed house it is not simply a matter of satisfying the licensing authorities that one is a fit and proper person to operate the premises as a public house. One has also to satisfy the planning authority that the change of use is appropriate for that property. I therefore emphasise that the suggestion that we should introduce the new clause does not necessarily exclude the use of licensing. Perhaps the Minister will say something about that.

The most important subsection—certainly the one that concerns me most—is subsection (3). I am not trying to exercise a total prohibition. All that I am arguing is that where permission is to be granted it should be subject to such conditions as to access, display and external advertising as may be deemed appropriate.

I am sure that all hon. Members can think of areas in their constituencies where it would be singularly inappropriate to open a sex shop. In order to give a local authority power to control such matters as access, display and external advertising", I hope that the House will give the new clause the most careful consideration.

Mr. Neil Carmichael (Glasgow, Kelvingrove)

I am grateful to the hon. Member for Dundee, East (Mr. Wilson) for the opportunity to debate this subject. A sex shop has been opened on the edge of my constituency, in the constituency of the hon. Member for Glasgow, Hillhead (Mr. Galbraith). Unlike other hon. Members, I do not know the address, but it is located in Dumbarton Road. I have received many letters from headmistresses, church people and various other groups and individuals about the shop which makes me feel that the matter should be discussed in the House. Therefore, I welcome the new clause on the basis that it allows the House to discuss the subject.

Although planning law is the obvious heading under which we should discuss such a subject, we must be careful about exactly what we are discussing. The hon. Member for Caithness and Sutherland (Mr. Maclennan) raised the important question of definition. For example, if planning permission were granted, at what ratio of sex magazines would a shop be classed as a sex shop rather than as a newsagents? Some station bookstalls have prolific displays of magazines. At what point would such a place become a sex shop?

Many hon. Members will remember the abuses that took place in Scotland with regard to licensed grocers. To English people, a licensed grocer is roughly the equivalent of an off-licence. Such a grocer could sell alcoholic liquor, but he also had to stock groceries. Some licensed grocers displayed only a couple of packets of tea and a pound of sugar, which seemed to satisfy the law, but the rest of the premises were stocked with alcoholic beverages. Therfore, some sort of definition is required.

There is no easy answer to this problem, and it is asking too much to believe that planning permission will solve the problem. I understand that the sex shop in my area has a blank front. I am not sure that that does not arouse more curiosity. As a child I always Wondered what was behind the doors of pubs, because in Scotland one cannot see what is behind pub doors. Similarly what happens inside betting premises must not be visible from the outside. I sometimes wonder whether many children regard that as a mystery, and whether in later life it is a reason why they are attracted into such places.

We must also ask how long the shop front will remain blank. If this is only an agreement, and if a person is required only to adhere to any obscenity regulations under the criminal law, there is no guarantee that the shutters will not come down at some point. Therefore, there is great difficulty about definition.

There is also a certain lack of consistency. If we use the planning laws simply to stop sex shops coming into being, we shall get into greater difficulty. All a person needs to do is to change the name to some other type of shop, as was suggested by my hon. Friend the Member for South Ayrshire (Mr. Foulkes).

7.45 pm

I have great sympathy with those who have written to me objecting to the opening of sex shops in the heart of densely residential areas. In Glasgow it is almost impossible to open such a shop in a residential area without its being close to a school. Such shops would have to be restricted to the centre of the city, where there are fewer schools. In addition, the rip-off would not be as great, because rents would be much higher. As a result those who run these seedy places would be unwilling to move into the centre of the city.

I am glad that we have had the opportunity to discuss this matter. I should like to hear the opinion of the House and that of the Minister. I am sure that he and his Department have looked at the principle thoroughly. I also hope that my constituents, and those of the hon. Member for Hillhead, realise that no simple or easy solution can cover this subject. An old Scots tag is "Hard cases make bad law". If we jumped too hard on the shop in Dumbarton Road, it might perhaps lead to making very bad law indeed.

Mr. Foulkes

I had hoped that the Minister would spring to his feet to make a statement. It would be helpful if we had the Government's view, particularly now that the Minister has his professional adviser, the Solicitor-General for Scotland, beside him.

Most hon. Members have sympathy with the aims of the new clause. I have had correspondence with the Minister on a similar problem which I suggested could be dealt with in the Bill. However, he discouraged me from doing so.

Like the hon. Member for Caithness and Sutherland (Mr. Maclennan), I am concerned about the definition of a shop dealing in sex magazines. Such a definition is far too wide. The inclusion of sex aids would also make any definition unclear. For example, some hon. Members have already asked whether contraceptives would be included. We might also ask whether "Playboy" would be included in any definition, because I believe that the Festival of Light and other organisations have challenged the view that such publications are sex magazines.

I wonder whether hon. Members who support the new clause can say that the planning procedures are appropriate. My hon. Friend the Member for Kilmarnock (Mr. McKelvey) rightly said that the licensing procedures could perhaps be more appropriate. It might be that this matter should be dealt with by the criminal law. The hon. Member for Dundee, East (Mr. Wilson) alluded to the criminal law but brushed it aside and did not say whether it would be appropriate.

Mr. Gordon Wilson

The hon. Gentleman will have heard the remarks of the hon. Member for South Angus (Mr. Fraser), who pointed out that licensed premises were subject to dual control. They first require planning permission for use as a public house and, secondly, the individual and premises are subject to a licence. The criminal law also plays a part in what is sold within licensed premises as well as to whom and when such products may be sold. Each of those controls has its part to play. I suggest that the planning procedures have a part to play in the subject now under discussion.

Mr. Foulkes

I appreciate that, but I wonder whether this approach has been thought out because it is taken in isolation of other aspects of the problem. I am not unsympathetic to what is sought, but it has many loopholes. One hon. Member discussed the possibility of an appeal to the Secretary of State, but if there were such an appeal, upon what critieria would the Secretary of State make his judgment? It would create all sorts of difficulties to use the planning laws. How could the person who is turned down argue on planning criteria when he will have been rejected because he wants to establish a sex shop?

I raised with the Under-Secretary the proliferation of "Space Invaders", an electronic game that is causing many problems for our young people; they are becoming addicted to it. They are stealing money to put in the slot machines in order to play it. Hon. Members may ask what "Space Invaders" have to do with sex shops. I asked the Under-Secretary whether it was possible to introduce a clause to deal with the proliferation in arcades and elsewhere of the "Space Invaders" game. The hon. Gentleman said that the Bill was not the most appropriate vehicle with which to tackle the issue. He also gave me some rubbish about "Space Invaders" fading away. As electronics become more sophisticated, I believe that the game will create an even greater hazard.

I understand the point about the difficulties of dealing with the problem under the planning laws. The solution proposed by the hon. Member for Dundee, East in respect of sex shops will, I say with the best will in the world, create many more problems than it solves. I ask the Minister to urge the hon. Gentleman to accept that there is a great deal of sympathy for his aims. He should withdraw the clause and if he can produce a better answer he will have the support of people such as myself who are worried about the mechanism he has chosen to propose today.

Mr. Bill Walker

I cannot take up the points made by the hon. Member for South Ayrshire (Mr. Foulkes) about "Space Invaders", because I do not know the game. However, I applaud the motives behind the clause. Sex shops are a manifestation of the declining standards of our society, and we are right to worry about that.

Mr. Robert Hughes

Sex shops are a manifestation of the capitalist ability to exploit every possible greed. I am surprised that Conservative Members should be attacking them when they represent exactly the ethos that they propound—"Make money any way you can and never mind people's sensibilities".

Mr. Walker

I hope that by his intervention the hon. Member was not suggesting that he had ever heard me subscribe to the view that one can make money any way or anyhow. I have never subscribed to that view. There are ways of proceeding that are acceptable to the majority. Conservatism and the theories of free enterprise and capitalism have nothing whatever to do with what the hon. Member has been saying. Some of the most Socialist countries in Europe exploit sex shops most. I have travelled extensively in Europe, and I have photographs of sex shops in some of the most obscure places.

Mr. Gordon Wilson

My clause proposes a change in terms of planning controls, not nationalisation.

Mr. Walker

I shall come to that point. I felt it necessary, in view of the intervention of the hon. Member for Aberdeen, North (Mr. Hughes), to explain to the less enlightened that sex shops can be found in Socialist States.

The problems in Strathmartine Road are serious and we should treat them with the seriousness that they merit. Those who live in the area are genuinely concerned, particularly for their children. They object to the way in which items are displayed and to what goes on, and I understand that. However, regardless of what they are selling, retailers are already subjected to too many regulations and planning restrictions, and the clause is probably therefore not the most effective way of tackling the problem.

We are looking not for a one-off cure, something to deal with what has happened in Strathmartine Road, but for a good law that will effectively deal with this type of problem generally. I have grave reservations about whether that is a description of the clause. I am in no way arguing against the desirability of what the hon. Member for Dundee, East (Mr. Wilson) is seeking to achieve, but we should think seriously about how we tackle the problem.

That brings me back to the question that I asked earlier about sex aids. I have visions of the local barber's shop, which may not give many haircuts, but which might sell many other items that provide a margin that enables the proprietor to keep his barber's shop open. There are dangers in proposals of this sort, and I have strong reservations about them.

Mr. Ernie Ross (Dundee, West)

I rise with slight trepidation having listened to speeches on the clause, to which I have appended my name. I am speaking simply to draw the attention of the House, particularly those hon. Members who do not have sex shops in their constituencies, to the problems that arise when business men, seeking to exploit human nature, decide to set up such shops.

It is obvious from the reaction since it was announced that a sex shop would open in Strathmartine Road that very few people in Dundee are anxious to have the benefits of Soho exported to their part of the country. What Dundee would like is to have those establishments that the sex shops have displaced from Soho. I recall as a young boy, and later as a young man, visiting London and being struck by the number of small family businesses in Covent Garden and Soho, shops selling wine, cheese, or home crafts, and restaurants. Now as one goes through that area one is confronted with sights which some might find pleasing but others would find objectionable. They do nothing to attract tourism to London and they add nothing to the amenities of the area.

Colleagues and I would visit restaurants where, sitting at a table, one could look through the front window and witness the most extraordinary displays in sex shops across the road. Other hon. Members may feel, as I do, that although the restaurants are small and high-class, the adjoining premises deter one from going to the area.

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My hon. Friend the Member for Aberdeen, North (Mr. Hughes) was right when he referred in an intervention to the sex shop as being an extension of the sort of society in which we live, where the prime motive is greed rather than need. It is that type of greed that has driven family businesses out of Soho. It is also that type of greed that has caused people to move to Dundee where they hope to make more profit from a sex shop than they might be able to make in London, where there is greater competition. I do not think that they will be very successful. However, that is not the real answer to the problem.

We are suggesting in the new clause that some attempt at least should be made to control the expansion of this booming business, which is an unwelcome hazard for parents and families who hope that their children or friends or relatives will learn about the facts of life in a normal manner and will not be confronted with displays in sex shop windows every time they go down the road.

The owner of the shop in question has given verbal assurances to the local authority that the shop window will not give offence to people. He has drawn our attention to the type of shop window that is found in London, to which there is so much objection, and indicated the sort of premises that he would like to open.

My hon. Friend the Member for South Ayrshire (Mr. Foulkes) indicated the real concern that is now felt by parents because of the boom in what are called "space invaders". Many young people who leave home in the morning with their lunch money spend almost all of it on machines of the sort described by my hon. Friend. I am not suggesting that the same children might want to spend all their money in sex shops, but the curiosity element may draw children at least to see what the shop looks like inside. One never knows what will happen once children or young people are attracted to shops of that sort.

It would seem from the debate that the more appropriate method of controlling this type of development might be through the local licensing committee. But if a local authority were to refuse a public house planning application because it would attract alcoholics, it would lose an appeal against its decision. Likewise, supposing the new clause were to be passed, if a local authority were to refuse planning permission because this type of shop attracted a certain type of sexual deviant, not a single planning objection along those lines could be sustained on appeal.

The Minister may be able to give us some indication of how he believes the problem should be handled. Those who have tabled the new clause may then wish to beg to ask leave to withdraw it, but that will depend on what he says in reply to the debate.

Mr. Rifkind

The hon. Member for Dundee, East (Mr. Wilson) is to be complimented on bringing forward a subject which is obviously of interest to the House. Indeed, he has attracted to the new clause the support of the hon. Member for Dundee, West (Mr. Ross) and my hon. Friend the Member for South Angus (Mr. Fraser). Such an unholy trinity of names has never before appeared on the Order Paper and that will probably put off the rest of the House.

The hon. Member for Dundee, West mentioned that one of the things that he is seeking to avoid is what happens in Soho. My hon. Friend the Member for City of London and Westminster, South (Mr. Brooke) has been present during the debate, and I believe that Soho falls within his constituency. I do not think that any hon. Member has any sympathy with or basic support for the establishment of sex shops or, indeed, for their proliferation in the cities of Scotland or any other part of the country. It is a most disagreeable matter and one which gives proper concern in Dundee and Edinburgh and one or two other places where such shops have begun to appear.

What we have to consider is whether the planning laws are necessarily the appropriate way in which to seek to control the spread of facilities of this kind, and not only whether it is the appropriate way but whether it is possible successfully to use the planning laws to control developments of this kind.

The hon. Member for Dundee, East has tried to frame his new clause in such a way that it would apply only to what he and the House understand to be sex shops, but the hon. Member for South Ayrshire was right to point out that, under the definition in the new clause, it would be very difficult to exempt from that category shops such as chemists which might sell contraceptives, or other shops which might have a small number of sex books or material as part of a larger stock.

The Government are not convinced that we are really dealing with a planning matter in any event. Planning is a well-established part of our law, and the planning considerations that the local planning authority should take into account—and the Secretary of State, if there is to be an appeal to him—may not be able to be related to the moral considerations with which we are concerned at the moment.

Mr. Robert Hughes

Two objections are being raised. One is, in principle, to the establishment of the shop, and the other is to the kind of material that is displayed in shop windows. Will the Minister tell me whether, under the existing planning law, the facade of the shop can be controlled if it changes use?

Mr. Rifkind

With regard to the display of obscene material or literature, under the existing borough byelaws, there can in certain circumstances be a prosecution for display or sale. With regard to change of use, if the premises in question are at the moment used as a shop for retail purposes, no change of use is involved and therefore no planning permission is required. If the building is used for a purpose other than a shop and it is intended that it should be used in this way, planning permission is required. But even then the local authority, in deciding whether to grant permission, can only take into account legitimate planning considerations and cannot exert moral approval or disapproval as to whether it is a sex shop or some other kind of shop.

It would be very difficult under existing planning law for a local authority to say that if a shop were to be used for any other purpose it would have granted permission, but that because it was planned to open a sex shop permission was refused.

Mr. Peter Fraser

Is the Minister saying that if, for example, someone made application to open a public house between a church and a school, it would not be a legitimate ground for the planning authority to refuse the application on that basis?

Mr. Rifkind

I am not saying that it is impossible, but it would be a difficult matter. My hon. Friend is right in pointing to the example of a public house, for there we have a situation in which the real control of whether a public house should or should not exist is not a planning matter but a licensing matter. [Interruption.] The right hon. Member for Glasgow, Craigton (Mr. Millan) is beginning to indulge in his favourite habit of intervening from a sedentary position.

I think the House will accept that, when we are dealing with public houses, gambling premises, or matters of that kind, if society wishes—and quite rightly—to exert control over them, that is exactly the purpose for which licensing Acts and licensing authorities have been established and those authorities consider just the sort of factors about which hon. Members have spoken in dealing with this matter.

There is an argument that, if society wishes to exert control over the spread of these sorts of establishment, some form of licensing might or might not be appropriate or ought to be considered. The Government have come to no firm decision at this stage on whether the existing law is sufficient to deal with problems of this kind. I do not exclude the possibility that some form of licensing may be considered appropriate, or that the planning laws may turn out to be one means of exerting some form of control.

I do not say that it is impossible to think in terms of the planning laws. However, it would be difficult to draft appropriate and enforceable legislation to deal with the planning aspect of these establishments. I hope that the hon. Gentleman will withdraw the new clause. The Government intend to give further consideration to whether the existing law should be modified or reformed in some way. Next year, the Civic Government Bill will cover the general question of licensing and will give us an opportunity to consider the matter in greater detail.

Mr. Peter Fraser

I should like my hon. Friend to give an undertaking that he does not exclude the idea that the planning laws are the proper basis for control. I accept that there may be difficulties in our defination of a sex shop, but I hope that my hon. Friend will give an undertaking that he will consider the possibility that the new clause provides a legitimate means of controlling these premises.

Mr. Rifkind

I do not exclude the planning laws as a possible means of exercising control. However, if control is appropriate, it might be more sensible to use licensing provisions than planning provisions.

Mr. Dewar

I listened carefully to the Minister's remarks. I appreciate that it is often difficult to find the right formula of words to deal with a sensitive subject when the answer amounts to "No". The Minister has not shown any particular skill in finding that formula. Despite the effects of the hon. Member for South Angus (Mr. Fraser), I am left in some doubt about the Government's position.

From the speeches that have been made it is clear that there is some concern over this matter. Like my hon. Friend the Member for Glasgow, Kelvingrove (Mr. Carmichael), I represent a part of Glasgow that is comparatively near to a shop that has opened in Dumbarton Road. I am aware that there is a good deal of public concern over this matter. The arrival of such a shop is throughly offensive to many people.

A number of broad approaches could be taken. Perfectly honourably, one could take the libertarian view that if people want to open sex shops they should be allowed to do so. If the shop's goods do not sell, and if there is no interest in the shop, it will wither away as a result of market forces and a lack of interest. It could be said that it is not for us to set standards and that the sort of shops that people open is entirely a matter for them. That would be a remarkable view for the House to adopt. It would not be endorsed by many hon. Members, including myself.

8.15 pm

If the laissez-faire approach is not adopted, a number of other lines of approach stand open. One could take the view that this is a matter for criminal law. That is not an entirely satisfactory approach. I am sure that the Minister will accept that recently there have been great difficulties with the criminal law. The Solicitor-General has made a number of determined efforts to mount prosecutions against Menzies, the well-known stationers, and perhaps against W. H. Smith on the ground that such shops have made indecent displays by selling certain magazines.

I have strong views about whether those prosecutions were wise and whether they should have been maintained. Such prosecutions underline the difficulties involved in criminal law and in the use of definitions. The definitions contained in the new clause have been criticised, but we should accept that almost any line of approach will involve similar problems of definition. I do not favour leaving the matter entirely to the criminal law, with all the difficulties that that involves. The idea of making this a criminal offence involves difficulties. It imports an element of moral turpitide and of judgment. In some ways I am reluctant to become involved in that debate.

Planning permission involves a different concept. In spirit, it is more appropriate to what I should like to achieve. In terms of the criminal law, the Civic Government Bill will provide a splendid opportunity to deal with this matter. It will deal with several analogous subjects. If it is not introduced in this Session, it will be introduced in the next one. We are not dealing with the criminal law. We have a choice between doing nothing—which, to judge from by hon. Members remarks, would not be acceptable—and considering licensing or planning legislation.

I could not understand the Minister's reaction to the point made by the hon. Member for South Angus, who reasonably pointed out that if a public house or betting shop was to be sited between a school and a church the local planning authority would have to take that into account. That is self-evident. The Minister was right to refer to licensing, but that is a separate matter. There is no need to drag it into this argument. Licensing might apply to the suitability of the applicant. It might be used as a means of controlling the total number of shops. The one thing that it will not deal with is the location of a particular shop.

The kernel of the problem is the location of a shop. Personally, I should not side with someone who argued that a shop that sold sex goods or objects should not be allowed to operate under any circumstances. I have never had the courage to recommend that sort of moral absolute to my electorate or to any of my colleagues. It is self-evident that if there is a place for such shops—however much one may not want to patronise them—we must not drive them underground.

Nevertheless, given that such a development is offensive to certain people in society, and given also that their operation can give rise to anxiety, it is right that there should be some means of considering whether the shop's location is suitable and appropriate. If that view is taken, the matter must fall fairly and squarely within the ambit of planning law.

Despite all the imperfections that elected local government representatives may or may not have, they should be the arbitrators of such decisions. After all, they deal with the great majority of planning matters. Therefore, our planning law should be amended. I do not want to nit-pick. I am sure that the hon. Member for Dundee, East (Mr. Wilson) will accept that a good deal of work will have to be done on new clause 6 if it is to find favour with the House. The definition gives rise to considerable problems. It seeks to catch someone who operates or who seeks to operate premises as a sex shop or a shop dealing in sex magazines or sex aids. It was almost suggested that if an existing shop changed its stock in order to sell sex magazines it might be caught by this provision and be subject to a closure order. That brings us back to my earlier remarks about the criminal prosecutions that the Solicitor-General has mounted.

Although definitions are always a problem and are not an excuse for doing nothing, this definition must be considered more carefully than is possible now. The Minister has resources and advisers. If the general principle is acceptable to the House, I am sure that it could be considered between now and the Bill's final passage towards Royal Assent—should that prove the will of Parliament.

I do not at this stage advise my right hon. and hon. Friends to vote for or against the clause. I shall not try to influence them on this matter. They are entitled to make up their own minds on the issue. However, if the hon. Member for Dundee, East presses this matter to a Division I shall vote with him because, for the reasons that I have outlined, the area in which he has placed the new clause is the right one. By voting for it and possibly passing it at this stage we would force the Minister—I hope that he does not think that this is in some ways ungracious and ungallant—to do the necessary tidying up, the fine honing, which would allow the new clause to appear on the statute book.

I speak for myself. I hope that some of the points that I have made will appear reasonable to my right hon. and hon. Friends. We shall see later, if the matter is pressed to a Division.

Mr. Gordon Wilson

I shall be brief. If the Minister had said that he welcomed the principle behind the new clause and preferred me to withdraw it so that he could produce a better drafted clause or amendment to the Bill to take care of the problem, I should have asked leave to withdraw the motion. There are drafting problems. I accept what the hon. Member for Glasgow, Garscadden (Mr. Dewar) said about it being difficult to get perfection in these matters, even if one consults planning legislation for style.

The Minister held out the slight hope that new civic government legislation might incorporate some reference to this matter, but he was politely and effectively saying that he did not intend to do anything further about this problem.

There is a principle at stake here. People feel that their standards are being invaded and that their children may be exposed to corruption, and so on. In the circumstances, with the Minister remaining silent and obdurate, I have no alternative but to push the clause to a vote.

Question put, That the clause be read a Second time:—

The House divided: Ayes 114, Noes 163.

Division No. 113] [8.22 pm
AYES
Adams, Allen Hogg, N. (E Dunb't'nshire)
Archer, Rt Hon Peter Home Robertson, John
Ashton, Joe Hooley, Frank
Beith, A.J. Howell, Rt Hon D.
Booth, Rt Hon Albert Hughes, Robert (Aberdeen N)
Boothroyd, Miss Betty Janner, Hon Greville
Bray, Dr Jeremy John, Brynmor
Brown, Ron (E'burgh, Leith) Johnston, Russell(Inverness)
Callaghan, Jim(Midd't'n & P) Jones, Barry (East Flint)
Campbell, Ian Lambie, David
Campbell-Savours, Dale Lamond, James
Canavan, Dennis Leadbitter, Ted
Carmichael, Neil Lewis, Ron (Carlisle)
Clark, Dr David (S Shields) Litherland, Robert
Cocks, Rt Hon M. (B'stol S) Lofthouse, Geoffrey
Coleman, Donald Mabon, Rt Hon Dr J. Dickson
Concannon, Rt Hon J. D. McCartney, Hugh
Cook, Robin F. McDonald, Dr Oonagh
Cowans, Harry McGuire, Michael(7nce,)
Cox, T.(W'dsw'th, Toot'g) McKay, Allen(Penistone)
Craigen, J. M. McKelvey, William
Crawshaw, Richard MacKenzie, Rt Hon Gregor
Cryer, Bob Maclennan, Robert
Dalyell, Tam McNamara, Kevin
Davis, T. (B'ham, Stechf'd) McTaggart, Robert
Dean, Joseph (Leeds West) McWilliam, John
Dempsey, James Mason, Rt Hon Roy
Dewar, Donald Maynard, Miss Joan
Dixon, Donald Millan, Rt Hon Bruce
Dobson, Frank Mitchell, R. C. (Soton Itchen)
Dormand, Jack Morris, Rt Hon A. (W'shawe)
Douglas, Dick Morris, Rt Hon C. (O'shaw)
Duffy, A. E. P. Morris, Rt Hon J. (Aberavon)
Eadie, Alex Palmer, Arthur
Eastham, Ken Powell, Raymond(Ogmore)
Edwards, R. (W'hampt'n S E) Prescott, John
Evans, loan (Aberdare) Roberts, Albert(Normanton)
Fitt, Gerard Roberts, Ernest (Hackney N)
Fletcher, Ted (Darlington) Roper, John
Ford, Ben Ross, Stephen (Isle of Wight)
Foster, Derek Sever, John
Fraser, Peter (South Angus) Short, Mrs Renée
Grant, George(Morpeth) Silverman, Julius
Grant, John (Islington C) Skinner, Dennis
Grimond, Rt Hon J. Soley, Clive
Hamilton, James(Bothwell) Spearing, Nigel
Hamilton, W. W. (C'tral Fife) Stallard, A. W.
Hardy, Peter Steel, Rt Hon David
Harrison, Rt Hon Walter Stewart, Rt Hon D. (W Isles)
Haynes, Frank Stoddart, David
Stott, Roger White, J.(G'gow Pollok)
Strang, Gavin Wigley, Dafydd
Taylor, Teddy (S'end E) Wilson, William (C'try SE)
Thomas, Dafydd (Merioneth) Winnick, David
Tinn, James Woolmer, Kenneth
Wainwright, E.(Dearne V)
Walker, B. (Perth) Tellers for the Ayes:
Weetch, Ken Mr. Gordon Wilson and
White, Frank R. Mr. Ernie Ross.
NOES
Alexander, Richard Knight, Mrs Jill
Ancram, Michael Knox, David
Atkins, Robert(Preston N) Lang, Ian
Baker, Nicholas (N Dorset) Lawrence, Ivan
Beaumont-Dark, Anthony LeMarchant, Spencer
Bendall, Vivian Lester Jim (Beeston)
Benyon, Thomas(A'don) Lloyd, Peter (Fareham)
Berry, Hon Anthony Lyell, Nicholas
Best, Keith Macfarlane, Neil
Bevan, David Gilroy MacGregor, John
Biggs-Davison, John MacKay, John (Argyll)
Blackburn, John McNair-Wilson, M.(N'bury)
Bonsor. Sir Nicholas McQuarrie, Albert
Boscawen, Hon Robert Major, John
Braine, Sir Bernard Marlow, Tony
Bright, Graham Marten, Neil(Banbuny)
Brinton, Tim Mather, Carol
Brotherton, Michael Maude, Rt Hon Sir Angus
Budgen, Nick Mawby, Ray
Cadbury, Jocelyn Mawhinney, Dr Brian
Carlisle, John(Luton West) Maxwell-Hyslop, Robin
Carlisle, Kenneth(Lincoln) Meyer, Sir Anthony
Chalker, Mrs. Lynda Miller, Hal(B'grove)
Chapman, Sydney Mills, Iain(Meriden)
Clark, Hon A.(Plym'th, S'n) Mills, Peter (West Devon)
Clark, Sir W.(Croydon S) Moate, Roger
Clarke, Kenneth(Rushcliffe) Monro, Hector
Cockeram, Eric Morgan, Geraint
Colvin, Michael Morrison, Hon C.(Devizes)
Cope, John Mudd, David
Corrie, John Murphy, Christopher
Cranborne, Viscount Myles, David
Crouch, David Neale, Gerrard
Dover, Denshore Needham, Richard
Dunn, Robert(Dartford) Nelson, Anthony
Dykes, Hugh Neubert, Michael
Fairbairn, Nicholas Newton, Tony
Fairgrieve, Russell Normanton, Tom
Fenner, Mrs Peggy Page, Rt Hon Sir G. (Crosby)
Fletcher, A. (Ed'nb'gh N) Page, Richard (SW Herts)
Fletcher-Cooke, Sir Charles Parris, Matthew
Fookes, Miss Janet Pattie, Geoffrey
Fowler, Rt Hon Norman Percival, Sir Ian
Garel-Jones, Tristan Peyton, Rt Hon John
Goodhart, Philip Pollock, Alexander
Goodlad, Alastair Prentice, Rt Hon Reg
Gorst, John Proctor, K. Harvey
Gray, Hamish Raison, Timothy
Greenway, Harry Rathbone, Tim
Griffiths, Peter Portsm'th N) Renton, Tim
Grist, Ian Rhodes James, Robert
Grylls, Michael Rhys Williams, Sir Brandon
Gummer, John Selwyn Rifkind, Malcolm
Hamilton, Michael(Salisbury) Roberts, M. (Cardiff NW)
Hannam, John Rossi, Hugh
Haselhurst, Alan Rost, Peter
Hawkins, Paul Sainsbury, Hon Timothy
Hawksley, Warren Scott, Nicholas
Hayhoe, Barney Shepherd, Colin(Hereford)
Heddle, John Skeet, T. H. H.
Henderson, Barry Speller, Tony
Hill, James Spence, John
Hogg, Hon Douglas(Gr'th'm) Spicer, Jim (West Dorset)
Hordern, Peter Spicer, Michael (S Worcs)
Howell, Ralph (N Norfolk) Sproat, Iain
Hunt, John(Ravensbourne) Squire, Robin
Jopling, Rt Hon Michael Stainton, Keith
Kaberry, Sir Donald Stanbrook, Ivor
King, Rt Hon Tom Steen, Anthony
Stewart, A. (E Renfrewshire) Waller, Gary
Stradling Thomas, J. Ward, John
Temple-Morris, Peter Watson, John
Thomas, Rt Hon Peter Wells, John(Maidstone)
Thompson, Donald Wells, Bowen
Thorne, Neil(Ilford South) Wheeler, John
Thornton, Malcolm Wickenden, Keith
Townend, John(Bridlington) Williams, D.(Montgomery)
Townsend, Cyril D,(B'heath) Wolfson, Mark
Trippier, David Younger, Rt Hon George
Viggers, Peter
Waddington, David Tellers for the Noes:
Wainwright, R.(Colne V) Lord James Douglas-Hamilton and
Wakeham, John Mr. Peter Brooke.
Walker-Smith, Rt Hon Sir D.

Question accordingly negatived.

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