§ Lords amendment: No. 12, in page 2, line 33, leave out "section" and insert "Schedule".
§ Mr. Raison
Right hon. and hon. Members will probably recall that these provisions were not added to the Bill until Report in this House. There was, accordingly, relatively little opportunity for their detailed scrutiny in this House, and it is not surprising, therefore, that a number of amendments—many of a technical or drafting nature—should have been proposed in another place. I shall not for this reason tire the House with an explanation of every amendment. It would be helpful, however, to speak in some detail to the principal amendments, including that about which my hon. Friend the Member for Newark (Mr. Alexander) is concerned.
1141 Most of the amendments of any substance have their origin in comments made in this House when the Government amendments were discussed on Report. That is true, for example, of amendments Nos. 133, 135, 136 and 137. Right hon. and hon. Members who were present on that occasion will recall the concern that was voiced on both sides of the House that the definitions in paragraphs 2 and 3 of schedule 3, and in particular the references to violence and cruelty, might be thought to imply that Parliament in some way condoned the sale of articles which appeared to encourage sexual violence.
That concern was echoed in another place and it led the Government to table the amendments before the House. Their effect is to remove the references to violence and cruelty in the definitions of "sex cinema", "sex shop" and "sex article", but to retain those to "force" and "restraint". As I explained to the House when introducing these provisions, it is necessary for the definitions to be comprehensive—even perhaps at the cost of giving some offence—if we are to ensure that premises selling the most objectionable material are not, by virtue of that fact, to escape the licensing controls entirely.
However, having considered the matter very carefully, we reached the conclusion that it would be safe to omit the words "violence" and "cruelty", provided that "force" and "restraint" were retained. The term "force" would probably cover adequately most material involving sexual violence or cruelty, with the exception of material depicting voluntary bondage. To ensure that the latter was covered we felt it necessary to retain the term "restraint". It was the general view in another place that this was a satisfactory outcome and I commend the amendments to the House.
Another matter that gave rise to much discussion in the House was whether the provisions would enable a local authority to prohibit sex shops entirely. I explained that the Government did not believe it appropriate, in such a regulatory measure, to provide local authorities with a blanket power to ban those premises from the whole of their area. However distasteful the premises may be, it is not an offence under the general criminal law to operate a sex shop provided, of course, that the Obscene Publications Acts and other relevant legislation are not contravened in doing so. I emphasised, however, that the ground for refusal in paragraph 11(3)(c) of the schedule would enable a local authority to consider what the appropriate number of sex establishments should be in the locality relevant to an application. I went on to say that there was no reason why, on proper consideration of an application, a local authority could not, if it felt justified in doing so, form the opinion that it would be inappropriate to have any sex establishments in the relevant locality. It appeared to be the general view that it would be helpful if it were made clear, on the face of the Bill, that the appropriate number of sex establishments for the purpose of paragraph 11(3)(c) might be nil. That is precisely the effect of amendment No. 159.
Another matter that troubled right hon. and hon. Members on both sides of the House—this brings me to the amendment about which my hon. Friend the Member for Newark is concerned—was the manner in which the appeals procedures might operate. It was argued, especially by the hon. Member for York (Mr. Lyon) and my hon. Friend the Member for Grantham (Mr. Hogg), that, as is said to have happened with betting offices, the views of local authorities and local residents would be 1142 overridden by the courts which, especially in the case of the Crown court, might be less sensitive to local circumstances. I undertook to consider the matter.
Our conclusion, which led us to table in another place amendments Nos. 187 and 189, was that there was a good case for saying that local authorities should have the final say where the considerations involved were of a distinctly local character. We had in mind the matters that might form the grounds for refusal under paragraph 11(3)(c) or (d) of the schedule. They go to the appropriate number of sex establishments in a locality and to such considerations as the character of the locality and the use of other premises in the vicinity. It is not unreasonable to take the view that the local authority, rather than the courts, should have the final say when considering those matters, especially with such a sensitive issue as the location of a sex shop.
I should emphasise that there would continue to be a right of appeal to the magistrates' court and to the Crown court where a refusal is based on the grounds set out in paragraph 11(3)(a) or (b). They relate to the applicant's suitability or the suitability of those on whose behalf he would be managing the premises. In such cases the grounds for refusal do not turn on local circumstances and it seems entirely right that a decision to refuse should be capable of being reviewed by the courts on its merits.
I should also emphasise that the withdrawal of a right of appeal in the case of a decision based on the grounds set out in paragraph 11(3)(c) or (d) could still be challenged by way of judicial review, if there was any reason to believe that it had not been properly reached by the local authority. The local authority would, therefore, be obliged to consider an application scrupulously and could not attempt to take advantage of the absence of a right of appeal in certain circumstances.
I fully appreciate that there may be some—as indeed there were in another place—who may have reservations as a matter of principle about the restriction of rights of appeal proposed in the two amendments. I hope, however, that the House as a whole—I include my hon. Friend the Member for Newark—will feel that this is, on balance, reasonable in what must be regarded as the special circumstances with which the schedule deals.
Some right hon. and hon. Members expressed anxiety when the provisions were introduced about whether the proposed penalties would be adequate in the light of the sums of money that are apparently made from trading in pornography. The Government had proposed that the principal offences under the schedule should be triable summarily only and subject to a maximum penalty of £5,000. I remind the House that this was already an exceptional penalty. No existing, purely summary, offence carries a higher maximum penalty than £1,000. There are a few offences in pollution and fisheries law where magistrates can impose a higher penalty but they are "triable either way" offences which, for reasons of speed, may need to be dealt with in the magistrates' court. In this instance too it seemed to us to be vital that offences should be capable of being prosecuted speedily and that there were no inherent reasons, such as difficulties of proof, why they should not be dealt with perfectly satisfactorily in the magistrates' court. Accordingly we proposed summary offences but with an exceptional maximum penalty that recognised the need to provide a deterrent.
In discussion in the House and in another place it became clear that there was a general feeling that £5,000 1143 was not sufficiently high and that a £10,000 maximum penalty would be more realistic, but nevertheless one that would still be compatible with the offences remaining triable summarily only. We were happy, therefore, to accept amendment No. 172 which proposes such an increase, together with amendment No. 185, which increases the maximum penalty for the obstruction offence from £200 to £1,000.
I now turn to the more important of the technical amendments, if I may so describe them, that are proposed to schedule 3. I can deal briefly with amendments Nos. 131 and 197. It was suggested by my hon. Friend the Member for Peterborough (Dr. Mawhinney) that it would be helpful if paragraph 25, which provides an explicit saving for the criminal law, was given greater prominence by moving it to the head of the schedule. The amendments do that and add references to forfeiture and condemnation proceedings under certain legislation. They are necessary because the proceedings are not criminal proceedings and would not otherwise be covered by the paragraph.
Amendment No. 198 serves to make clear the relationship between schedule 3 and the provisions of the Cinematograph (Amendment) Bill, which was introduced by my hon. Friend the Member for Fareham (Mr. Lloyd) and which is now being considered in another place. The House may recall that I said, in moving the amendments to add schedule 3 to the Bill, that the Government wished to consider whether it was necessary to retain references to sex cinemas since it was the purpose of my hon. Friend's Bill to bring those premises within the cinematograph licensing system. The need to obtain a cinematograph licence would mean that the local authority had complete control over what could be shown, making it unnecessary to subject those premises to the sex establishment licensing arrangements in schedule 3.
As I explained to the House in response to a question from the hon. Member for Halifax (Dr. Summerskill) during Report stage of my hon. Friend's Bill, we decided to retain the references to sex cinemas in the schedule in order to act as a "long stop.". We are convinced—I was glad to note that the hon. Lady took the same view—that the most satisfactory means of exercising control over cinematograph exhibitions lies in the well-established cinematograph licensing system. But if exhibitions of pornography are put on in premises that fall outside the scope of that system, the provisions of schedule 3 would be there to fall back on.
It is clearly sensible, from the point of view of the local authorities and everyone else, to avoid an unnecessary overlap. Schedule 3 already provides in paragraph 3(2)(a) that premises issued with a cinematograph licence should not be subject to the requirements of the schedule. The purpose of amendment No. 198 is to deal with what would otherwise be an awkward interval before, as we all hope, my hon. Friend's Bill comes into force. It would not be sensible if local authorities had to consider applications under schedule 3 from premises which, once my hon. Friend's Bill came into force, might be exempted by virtue of having obtained a cinematograph licence. Amendment No. 198 provides that, for sex cinemas, the schedule will not come into force until the day appointed in an order made by my right hon. Friend the Home Secretary. My right hon. Friend's intention is to bring the provisions into force on the day that my hon. Friend's Bill comes into 1144 force, thus avoiding an awkward interval between the two. I emphasise that this applies only to sex cinemas. The schedule will apply to sex shops immediately on Royal Assent.
The last group of amendments to which I propose to refer in any detail are the 30 or so concerning vessels or hovercraft. We considered that it might be unwise not to allow for the possibility that some enterprising individual might open up a sex shop on a boat in the local river or harbour. This would be to take advantage of the fact that the schedule originally applied only to a premise, vehicle or stall. I hope that the House will agree that it is sensible to block that potential loophole.
The remaining amendments are minor and mostly of a drafting or technical nature. I hope the House will agree that the amendments that have come from another place serve to strengthen the Bill, and that they will be accepted.
§ Mr. William Pitt (Croydon, North-West)
I welcome Lords amendments Nos. 172 and 185 because one of the principal reasons for the continued establishment of sex shops is that vast sums can be made from them. If the amendments can be put into effect when fines are imposed, they will be effective in reducing the profits of those who are trading illegally. I am sure that my hon. Friend the Member for Isle of Wight (Mr. Ross) will wholeheartedly agree with the amendments dealing with hovercraft.
Lords amendment No. 189 is important because it is related directly to the number of sex shops in a locality. Those who seek to establish sex shops have an effective lobbying presence. Since this issue has been aired in the House I have been lobbied once or twice a week by letter. I have been asked for meetings with at least four or five individuals on the subject of sex shops. A fairly minor part of commerce seems to attract an excessively strong lobby.
Local authorities should have the right to regulate the number of sex establishments in any area. Soho is an example of what happens when there is no ability to regulate. Over the years I have used Soho restaurants frequently. Often when I walk through Soho I do not know where I am because on each occasion another sex establishment has been opened. It is a prime example of the result of untrammelled access to these establishments. I support Lords amendment No. 189 wholeheartedly. I do not think that there should be the right of appeal.
In another debate I illustrated the argument by referring to walk-in bingo parlours. The owners had the right of appeal and because of their financial strength they were able to introduce walk-in bingo parlours against the wishes of many residents. If those who wish to establish sex shops are allowed the right of appeal, they will be able to use their undoubted riches in that way. They would thereby be able to flaunt the wishes of the vast majority in areas where such establishments are not wanted.
These establishments have a place—personally they are not for me—but I suggest that it is probably in the centre of towns rather than in district shopping areas which cater for a different clientele. I welcome all the amendments that provide for increased fines and I welcome especially Lords amendment No. 189.
§ Mr. Richard Alexander (Newark)
I shall address my remarks to Lords amendment No. 189. My remarks are not intended to support or oppose the existence or setting up 1145 of sex establishments. I wish to deal with the rightness or otherwise of such establishments to have a right of appeal. If the House were to accept Lords amendment No. 189, a lawful business activity could be refused a licence either because the local planning committee thought that there were enough establishments of that nature or because of the character of the locality in which the premises were situated. It could do so and the owners of the sex establishment would have no right of appeal. My right hon. Friend has said that there is the possibility of the much more complicated procedure of judicial review in a much higher court. However, the general right of appeal that is granted to other similar applicants will be excluded from those who own sex establishments if the amendment is accepted.
I accept the right of local authorities to make a decision either for or against sex establishments or for or against renewal of a licence. However, I do not accept that, because some people find these establishments offensive, they should become the only lawfully permitted activity where there is no appeal against a planning decision. There are other equally unattractive activities—for example, chip shops, knackers' yards and pubs which have licences to permit singing and dancing—and they all have the right of appeal.
Probably in common with most hon. Members, I was not aware of the implications of the proposed amendment until I received representations from a director of the Ann Summers group of shops. Having received those representations and having considered the amendment, I felt that the proposal was against natural justice and I tabled an amendment to it. Surely every applicant should have a right of appeal when his livelihood is at stake.
§ Mr. W. R. Rees-Davies (Thanet, West)
If my hon. Friend answers the question that I am about to pose, I think that he will agree that he will in so doing answer the proposition that he has been putting so fairly before the House. Is it an administrative decision by the local authority whether there should be sex shops, any or many, or is it a judicial decision? If it is a quasi-judicial decision, there is no doubt that my hon. Friend's argument is right and that there must be an appeal. However, if it is an administrative decision that is entirely within the concept of the consideration of the councillors of the area, there is no need for an appeal. Surely that is the issue, and I ask my hon. Friend to apply his mind to it.
§ Mr. Alexander
I agree with my hon. and learned Friend that if it is an administrative decision no right of appeal is necessary. However, I put this issue on all fours with an application for a licence to run an amusement arcade, in which event a local authority must exercise its discretion impartially, even judicially, in accordance with criteria laid down under the law. For that reason I suggest that the owners of sex establishments should have the right of appeal. Surely it is appropriate that they have that right. We are not dealing with a purely administrative decision.
When the character of the applicant is at issue there is a right of appeal. I see no great distinction between the character of the applicant and the locality of the business, especially when the business has been perfectly properly carried on without complaint for a number of years. The public might have no complaint but the owner's livelihood, on the expiry of a 12-month licence, could be put in jeopardy following the annual review.
1146 The fact that those establishments may be doing a service to the public is a different argument. It is not part of my argument today. Whether we should have sex establishments in our midst is not the object of the legislation, or it should not be. The object is licensing. However, the amendment seeks to enable the banning of those estalishments on grounds that cannot be challenged in the courts, except for the much more complicated possibility of a judicial review, unlike any other lawful activity. An activity is either lawful or it is not. If it is to become unlawful, let us say so and enact accordingly. If it is lawful, there are no grounds in justice, humanity or logic why that business should suffer a penalty that no other business suffers.
I was a former member and former chairman of a planning committee over many years. This is partly in answer to my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies). Regrettably, planning committees do not always react impartially, or as impartially as they might, to applications that are before them. Usually they act impartially, but occasionally they do not. I remember one case when I was severely cross-examined by leading counsel. There was an appeal against a refusal by my committee of permission for an amusement arcade in the locality. I was severely cross-examined on the grounds that allegedly I had been motivated by prejudice against that activity. It was right that I was so cross-examined—whether or not there was prejudice on my part is another matter. It is right that in that case we might not have acted as impartially as the law would hope.
Surely, when prejudice and emotion are more likely to be present in a planning committee's mind, an impartial judicial review is essential. A review is appropriate in a magistrates court or a Crown court. In this case, where a review is most needed, it is being denied. This is the only occasion when an appeal would not lie. I quote briefly from the Williams committee, which said about planning authorities:It seemed to us that the pressure which would be placed on planning authorities when they were considering an application to open a pornography shop were unlikely to be based strictly on planning and amenity grounds.If we want to ban such establishments, let us say so, but if they are to remain lawful—no one so far is suggesting that they should be unlawful, which is another argument—they are entitled to enjoy the protection of the legal system that other lawful businesses enjoy which is a right of appeal against the refusal of the grant of renewal of their licence and a right to know the grounds on which such a grant or renewal has been refused so that they can appeal. That is elementary justice. Therefore, I disagree with the Lords amendment.
§ Mr. George Cunningham (Islington, South and Finsbury)
The hon. Member for Newark (Mr. Alexander) invites us to regard this kind of business as being on all fours with any other business. The whole consideration of this matter over the years has been to suggest that it is not, in the view of many legislators, a business like any other. That is what justifies the different treatment of that business from the treatment that would apply otherwise. The hon. and learned Member for Thanet, West (Mr. Rees-Davies), when he endeavoured to assist his hon. Friend, invited him to consider whether this kind of decision was an administrative or a judicial decision. I suggest that it only muddles things up to imagine that there 1147 are only two classes of such decisions. There is an infinite spectrum of different gradations of decisions. I do not know whether to define this decision as administrative or judicial. Other factors determine how we should treat it.
Such an application is not like an application for a discretionary improvement grant, when we give total discretion to the local authority to decide "Yea" or "Nay". Nor is it like a case where we set down clear criteria, invite the local authority to say "Yea" or "Nay" on those criteria and give to another authority such as the Minister or the courts an ability to second guess that on appeal according to the same criteria.
Although criteria are linguistically set out in the Bill, the words used are such as to make it an entirely discretionary matter. I am thinking of paragraph 11(3)(c) of schedule 3, which refers to the possibility of limiting numbers. It states that the grounds for refusal arethat the number of sex establishments in the relevant locality at the time the application is made is equal to or exceeds the number which the authority consider is appropriate for that locality".That opens the door wide to complete discretion in the local authority. It is proper for a local authority, within those words, to consider the views of local residents. If it is proper for it to consider the views of local residents, that is something that a local authority ought to be well placed to judge, but which any appeal body, whether ministerial or judicial, would not be well placed to second guess upon. If we are allowing that consideration to be relevant—we clearly are—that is one reason why it is appropriate in this case that we should not allow any appeal.
However, the House should always be reluctant to do anything of this character without allowing an appeal. I suggest that the House should make a mental note that we should proceed fairly confidently on the basis set out in the Bill and in the Lords amendments, but that we should consider the matter again in the light of experience over a prolonged period simply because it is not a good principle not to have an appeal.
The Minister was necessarily quick in dealing with the amendments. I tried to follow carefully what he said about amendment No. 159, which allows the number of establishments to be set at nil. However, I should be grateful if the Minister would clarify the matter further. I thought that the Minister would say that in general and in principle a local authority should not be free simply to decide that it would not have any sex shops in its area but that it would be free, in the light of the circumstances and of the criteria, such as they are set down in schedule 3 paragraph 11, so to decide. It is a nice distinction. It is particularly nice when the criteria contain vaguish words such asthe number which the authority consider is appropriate for that locality.I ask the Minister to clarify the extent to which a local authority, if the amendments are accepted, is free simply to say that it is not having sex shops in its area.
Let us imagine that as soon as the Bill is passed a local authority says "Right, that is our decision. We are not waiting for applications. We are letting it be known now that we shall not agree to any such applications" I imagine that the authority could not get away with that because the paragraph contains the words:at the time the application is made".1148 Secondly, let us say that whenever an application is made the local authority simply announces that it is its policy not to agree to such an application. Could it get away with that?
Finally, if in response to any particular application the authority said that it was not agreeing to it simply because it regarded the number appropriate for that locality as being nil, and always said that in the letter sent to the applicant, could it get away with that?
We need more clarification of the extent to which local authorities will be free to adopt, in effect, a total ban and the manner in which they will have to express their decision to that effect. Otherwise, local authorities might expose themselves to judicial review of this point and we should become tangled up in case law which might in the end have to be sorted out by fresh legislation.
§ Mr. Peter Griffiths (Portsmouth, North)
I warmly welcome the amendment. The deliberations in another place have improved this part of the Bill. They have met the objections that some of us expressed at an earlier stage in the Bill's passage through this House when we took the view that a local authority's freedom to carry out its duties and responsibilities in decisions relating to sex establishments might be subject to unusual restriction if it not permitted to decide that a particular area was entirely unsuited for such establishments.
With respect, while I agreed with the tenor of what the hon. Member for Croydon, North-West (Mr. Pitt) said, I objected strongly to his comment that the ideal place for sex establishments was the centre of cities. That is the last place in which we wish to see such establishments, where they would be in the public eye and an affront to people who do not wish them to be there. If they are to be established anywhere, I would expect them to be in that area of the city in which people might approve such an establishment, but certainly not in the city centres, which are frequented by families with children and people who do not wish to have such establishments glaring at them as they do their daily shopping.
On the proposition that the number of sex establishments may be nil, and on the question of appeals raised by my hon. Friend the Member for Newark (Mr. Alexander), I for one have not the slightest objection to a local authority saying that in its considered view a particular area does not require the provision of any sex shops, provided that the decision is properly taken and becomes the basis of the local authority's policy in dealing with individual applications. I certainly agree that each application must be properly dealt with in accordance with the provisions of the legislation and due care must be taken to ensure that any refusal of an application for the establishment or re-establishment of a sex shop is carried out in accordance with the provisions of the legislation. Nothing in that, however, should be taken as suggesting that it would be improper for a local authority to decide that there should be no sex shops in its area. In many parts of the country, there is a desire to keep such establishments out. I believe that that is a perfectly proper view for a local authority to take.
My hon. Friend the Member for Newark raised an important point when he questioned the moral basis on which an individual may be refused the opportunity to appeal against the decision of a local authority. With respect, however, I felt that he weakened his case when he went on to talk about whether the activities concerned 1149 were legal or illegal. I do not think that a local authority will at any time be considering whether a proposed sex establishment would be legal. The very fact that we have a system of licensing, offensive though it is to some of us, suggests that sex shops of themselves are not illegal. We are here considering the administrative decision as to whether a local authority is prepared to license such an establishment in its area. As my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) said, that is not a legal distinction. It is a decision on the administrative implementation of what amounts to a political decision by the local authority. In such cases, I do not think that there can be an appeal to any authority other than the local council which made the original decision. If people do not like it, they will have to change their council to secure a different policy. It would be entirely wrong for a clearly expressed view on this to be subject to a lengthy legal procedure. I shall explain why.
As the House may be aware, one of the major operators of sex shops, Messrs Conegate, has already assured the managers of its shops that if the Bill becomes law it will seek to maintain all of the establishments that it now has by making applications as and when that becomes necessary. It has also assured them that if the applications are refused it will seek to appeal and to use the full process of the law for as long as may be. That is a deliberate intention to spin out the process so that the shops can carry on business for as long as possible, regardless of how offensive they may be to people in their areas.
It is clear that we may have to consider these matters again and again, as the same firm has said that if, when the legal proceedings have been exhausted, the shops are not licensed and are faced with the prospect of closure, it will re-establish each and every one of them as a video centre. We must pay close attention to attempts to get around the licensing system by continually changing the name or description given to an establishment carrying on the types of activity that the Bill seeks to limit.
Therefore, we should be grateful to their Lordships for the amendments that they have made to improve the Bill and the opportunity that will be given to local authorities clearly to express the decisions of people within their areas. I welcome the amendments and I trust that my hon. Friend the Member for Newark will not press his view. If he does, I shall have no doubts at all in seeking to vote against it.
§ Mr. Rees-Davies
We are indebted to my hon. Friend the Member for Newark (Mr. Alexander). We must begin by assuming that his arguments, in general, are right and that there should be a right of appeal in respect of judicial proceedings or quasi-judicial proceedings. We have to examine whether the proceedings are of a character which necessiate an appeal or whether they are purely of administrative and only for ministerial or local decision. It is necessary to consider amendment No. 159 regarding the locality.
I pointed out on Report that we would need such an amendment in the other place. One had to consider whether it would be proper for a local authority to conclude that there should be no sex shops in its locality.
1150 The Minister replied that he felt that it would be possible to arrive at a situation in which there were none without the need for an amendment. I argued that, for the sake of clarity and so that there should be no ambiguity, this amendment, tabled in the other place and passed, was appropriate. The amendment states:Nil may be an appropriate number for the purposes of sub-paragraph (3)(c) above.The sub-paragraph statesthat the number of sex establishments in the relevant locality at the time the application is made is equal to or exceeds the number which the local authority consider is appropriate for that locality".This entitles the local authority to say categorically that the answer in its locality is "None". A resolution of the council is required. The decision is open to attack by any member of the public who can argue that it is wrong. I appreciate that few individuals are probably prepared to stand up and say that they challenge the decision and to declare that they feel that there should be a sex shop. However, that resolution must be passed and the council must state with clarity the locality to which it refers. In the Isle of Thanet, there are a number of localities—Birchington, Margate, Broadstairs and Ramsgate. The Thanet district council covers all four and other areas. The district council would have to give the matter serious consideration and would have to say in which of those localities there would be none. It is true that there is no appeal.
The question that arises is whether it is right that absolute power should be given to a district council to make a decision that should be determined locally by the local people. To give a right of appeal invites the judges to overrule the wishes of the locality and the local authority. Those who argue that there should not be a right of appeal do not say that it is improper to have a right of appeal; the hon. Member for Croydon, North-West (Mr. Pitt) was wrong. Their argument is that it is essential to consider who makes the decision. Lawyers refer to it as a list. There is no decision involved that the judges can take without reversing the wishes of the local authority. If the local authority says that there are to be no sex shops, all that can be argued on appeal to a recorder, a judge or any judicial authority is that the decision is wrong.
There are precedents. I give two from experience. One is betting offices. Whether there are too many or too few betting offices has always been left as a general decision for magistrates but subject to appeal. This is the nearest example to the case that my hon. Friend the Member for Newark has put. It could have been argued that a local authority would say that it was not going to have one betting shop in its locality, but local authorities do not possess that power. It was not given them by the House.
I recall, however, what I advocated, very much against my general background as a lawyer, in respect of gaining. I invited both the present Lord Chancellor and Lord Gardiner to introduce an absolute control on gaming establishments giving a dictatorial right to the Gaming Board without any consideration of appeal. That is much more analogous. The reason was my fear of control by the Mafia or undesirable foreign interests infiltrating gaming 1151 in this country. That would be impossible to control. The same consideration applies to the large and powerful pornography industry.
I am not arguing that there should not be sex shops. In my view, there should be sex shops in some localities and areas which are appropriate. We are, however, dealing with an international trade which is substantially funded and able to infiltrate throughout the whole country. It is much more analogous to the situation in which the Gaming Board has totally autocratic powers. It is partly for that reason, although with some doubt, that I take the view that the local authority should be entitled absolutely to decide whether it wants one or three sex shops or none at all.
§ Mr. Alexander
Assuming, as my hon. and learned Friend says, that this will be a dictatorial exercise by the local authority, what is the point of the Minister saying that an aggrieved applicant can go for a judicial review?
§ Mr. Rees-Davies
I do not think that my right hon. Friend means a judicial review in the sense that the judges would be able to review this matter. I have no doubt that my right hon. Friend will deal with this matter in his reply. The argument, it seems to me, is that the decision is for the local authority.
§ Mr. Tim Sainsbury (Hove)
My hon. and learned Friend refers to the dictatorial power of the local authority. One can scarcely call an elected local authority dictatorial in matters that affect local people.
§ Mr. Rees-Davies
I am much indebted to my hon. Friend. I should have picked up that point. The issue of pornography is something about which every member of the public claims a detailed knowledge. Throughout the Isle of Thanet they talk of little else. People know whether they want a sex shop. The matter could be challenged in the council chamber and would no doubt receive wide publicity. It would be canvassed in considerable detail locally. There are some robust local authorities. They may take the view that there should be a sex shop here or there.
There is a difference of attitude in the House as to where, if one allows sex shops, they should be. One cannot ask a recorder or a judge to decide that. It cannot be subject to appeal. The number of betting offices in an area depends upon the locality. There was disagreement this morning between two hon. Members. The hon. Member for Croydon, North-West said that they should be in the centre of town, whereas my hon. Friend the Member for Portsmouth, North (Mr. Griffiths) said that that was the last place they should be. It is for the local authority to decide that issue.
I should have thought that if there were to be a sex shop in Thanet it should be in Margate. I may be wrong; perhaps I should not give that opinion. It is for the local authority to decide. Happily, it is a matter that hon. Members will not have to decide because we should be most unpopular. Is the sex shop to be in the back street or the high street? Is it to be—as Victoria station has it—"Right, as you go out of the station"? Is it to be within the purlieus of Soho and its back streets? I do not know, and it is certainly not a matter for judicial review. It is not an issue to be left to a recorder or judge who will merely ask "What do the local people want? What do they say?". 1152 For those reasons, it is difficult for there to be a right of appeal. That is why I believe that the other place was right to table the amendment which excludes the appeal.
It is contingent upon amendment No. 159 to arrive at the conclusion whether there should be any, and if so how many, sex shops and precisely where they should be.
§ Mr. Donald Anderson (Swansea, East)
I arrive at the same conclusion as the hon. and learned Member for Thanet, West (Mr. Rees-Davies) and largely on the same grounds. A judicial review—this answers the point of the hon. Member for Newark (Mr. Alexander)—will arise only if it can be shown to the satisfication of the divisional court that the local authority has not considered an application on its merits and has put itself outside the statute by refusing the application on any ground other than those contained in the schedule. Those are the only circumstances in which there can be an appeal against refusal.
I have heard the distinction drawn between administrative and quasi-judicial functions. That may not be helpful in a case such as this, because, as the hon. Member for Islington, South and Finsbury (Mr. Cunningham) has said, there are considerable gradations. Ultimately—I agree with the hon. and learned Member for Thanet, West—one has to decide whether in all the circumstances it is a decision that should properly be made by the elected members of a locality. A magistrate or a Crown court judge is less fitted to decide that issue. The ultimate sanction is that of the local electors rather than that of a judicial individual who will manifestly not have the same expertise as members of the local authority who are elected to express the collective view of local people on issues of this nature. They have to face the electorate from time to time, and the electorate will be able to express their feelings if they feel that the local authority has not represented their views properly.
I do not arrive at my view on the ground—I take the point made by the hon. Member for Portsmouth, North (Mr. Griffiths)—that delays would result from judicial proceedings. Conegate Ltd. has said that it will exhaust to the full the right of appeal, both to magistrates' courts and Crown courts, and keep its establishments open. That would be its right if there were an appeal procedure. Nor is it on the ground—as mentioned by the hon. and learned Member for Thanet, West—that sex shops are analogous to gaming establishments in some respects because they are different in kind from the precedents cited by the hon. Member for Newark of other nonconforming users—like knackers' yards, and so on. The Mafia is not likely to move into knackers' yards. The Mafia is active in the gaming world and we must be vigilant. Individuals of doubtful reputation have moved into the business of sex shops and will continue to do so.
I was amused, as many hon. Members may have been, to see the letter from Conegate Ltd. One knows the reputation of at least one of its directors. The antecedents of a director of Ann Summers are known. In a desperate search for respectability Conegate Ltd. tells its retailers that it has as chairman of its board a member of the other place—[HON. MEMBERS: "A Liberal."] I was not proposing to make a party point. I come from a more puritanical brand of Welsh nonconformity and do not have the liberality that is seen elsewhere. Conegate Ltd. has not only a chairman who comes from the other place in ermine who adds a certain respectability to the company, but is 1153 hoping to have a retired prison governor and a medical practitioner on the board. As the ultimate accolade, Conegate Ltd. might say that the company was trying to obtain the services of a bishop. One knows that there are a number of bishops of the established Church who appear to be trendy in their thoughts on such issues and who may lend themselves to this type of establishment.
I do not for the purpose of this speech oppose sex shops on the grounds of the rather sleazy and unwholesome background of some of the people concerned, and the vigilance that people would need to show to keep them at bay. As has been stated by other hon. Members, it is our view that it is essentially a matter for local decision by the locally elected representatives who can best express the collective view of their electorate. Although the House will be slow to refuse a right of appeal, this is one case where such a right should not be allowed.
As to whether a local authority can have a general policy to exclude sex establishments completely from its area, I should be grateful if the Minister will clarify the points raised by both the hon. Member for Islington, South and Finsbury and the hon. and learned Member for Thanet, West relating to a local authority's ability to decide upon a complete ban. I understand that it would be improper on the basis of the relevant part of the clause for a local authority to determine that, come what may, it would have a complete ban in the area that it covered. If the local authority goes through the proper forms, that end can be achieved by other means. If the local authority regarded each locality separately, that could be achieved. I seek the Minister's guidance on the definition of a locality for those purposes.
If a local authority were, for each locality within its area, having examined applications on their merits, to decide that it would not allow that particular sex shop, or sex shops in general, in that locality, it could reach a complete ban. Will the Minister confirm that that is the Home Office interpretation?
§ Dr. Summerskill
I congratulate the Minister on agreeing that the words "violence or cruelty" should be deleted. On Report he said that to exclude the words would be illogical, that they were needed for technical reasons and that they filled in the picture and gave detail that was necessary if the provision were to work effectively. I am glad that he has now decided to the contrary. I am sure that the vast majority of the House will support that. By licensing articles associated with or intended for violence or cruelty, the House would be condoning and legitimising their sale. In an Act of Parliament we should not encourage violence or cruelty.
Amendment No. 159 has led to anxiety. The hon. Member for Islington, South and Finsbury (Mr. Cunningham), their Lordships and others have asked for further clarification. It is a general wish that a local authority can say that it will have no sex establishments in its area. If it has one or two it should be able to say that it wants no more; if it has none, to continue to have none.
I am sorry to keep harking back to what the Minister has said, but we do not know what he might say. On Report he said that the licensing scheme was deliberately directed at the suitability of applicants and premises. He accused those of us who were trying to include the provision in the Bill of tackling the problem by the back door.
1154 In another place an amendment was tabled to permit a local authority to resolve that sex establishments should not be permitted in its area. The Government opposed that. They did not like the amendment. The Government amendment refers to "locality" and not "area". The term means the locality in which the premises are situated. Does "locality" mean the same as a local authority's total area? The Government said in the other place that their amendment would enable licensing authorities to reach the same conclusion in the end as a total veto. Why did they not accept the amendment referring to a local authority's total area? "The relevant locality" implies the neighbourhood immediately around the premises of a sex establishment and not the whole local authority area. The House would like to enable a local authority to say that there should be no sex establishments in its whole area. There is ambiguity about the Government amendment. Their Lordships believe that it still does not express what is generally wanted.
§ Mr. George Cunningham
In so far as the hon. Lady is going after the definition of "relevant locality" as against a number, is it not clear that if a local authority were defining a relevant locality for the purposes of paragraph 11(3)(d) it might have to establish that there was some common characteristic about the relevant locality and that might mean that it could not regard the whole of its area as the relevant locality for paragraph 11(3)(d)? But for paragraph 11(3)(c) there is no reason at all why it should not regard the whole of its area as the relevant locality, because there is no characteristic built into paragraph 11(3)(c) which the area has to have in common.
§ Dr. Summerskill
I agree with the hon. Gentleman.
It is for the Minister to explain what the Lords amendment will mean in practice. I hope that he will explain why the term "area" was rejected and "locality" was preferred, with the much more restricted meaning that it appears to have. It is important that what the term is intended to mean is what the House wishes—that a local authority can say that in the whole of its area it can veto the establishment of sex shops.
§ Mr. Rees-Davies
Under the Bill, assuming there are four major localities—Margate, Broadstairs, Ramsgate and one other—the authority would have to state each in turn as being a locality that should not have sex shops. Is that not preferable? The term "local authority area" may mean that local representatives will not give the matter the same consideration.
§ Dr. Summerskill
There is an argument for each little area to be considered separately, but on Report the House took the view that the whole local authority area should be considered as one by the elected councillors.
I doubt whether we shall vote on the issue. The term "locality" will be used. But I wish to know how the Government see the term operating and whether it will meet the wishes of the House, which were repeated forcefully on Report, and which the other place endorsed.
I welcome the fact that the fine has been raised to £10,000 and that it is now considered appropriate to deal with the cases in magistrates courts. However, I do not believe that the fine is sufficient to deter sex establishment operators. The report by Mr. Patrick Sergeant, the city editor of the Daily Mail, quoted a man described as the highest paid company chairman in Britain, who drew 1155 £325,000 salary last year from a chain of sex shops which earned £2 million. Someone like that would be prepared to pay £10,000 fine in order to continue his lucrative trade, and such a fine would not deter others from starting up in the trade.
The appeal procedure has been fully debated and I agree with the several hon. Members who have pointed out that the legislation is new—
§ It being Eleven o'clock, MR. SPEAKER interrupted the proceedings, pursuant to Standing Order No. 5 (Friday Sittings).