Local Government (Miscellaneous Provisions) Bill (Hansard, 2 July 1982)

HC Deb 02 July 1982 vol 26 cc1166-90 1166

§ Question again proposed, That the amendment be made.

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§ Dr. Summerskill
Before the statement, I was referring to Lords amendments Nos. 187 and 189, which relate to the right of appeal. As has been said, the Bill deals with a new situation and with the licensing of a unique type of shop. It cannot be compared with any other licensing, such as the licensing of betting shops, or with planning permission or improvement grants. Therefore, this issue must be considered quite separately.
I am concerned more with the right of appeal by a shop in existence than with the refusal to create a shop. In the case of a shop that exists, I am not very worried about its owner. He is in a lucrative business and could no doubt move to another area in which the local authority was willing to allow him to set up shop. The owner could easily find some authority to give him a licence. However, I am worried about those who work in the shop and who are not getting a proportion of the owner's profits. The worker would be earning an ordinary wage.
A point of principle is also involved. The House should not take away a right of appeal without giving the matter careful consideration. However, we are clearly dealing with people who will be vigilant over their right of appeal. Conegate Limited sent a letter to its staff saying: all is not lost—we can appeal to the Magistrates Court, and if we lose there, to the Crown Court—and all this time, an existing shop can continue to trade. Obviously the company will use the power of delay in the appeal system and the shop will continue to operate, possibly against the local authority's wishes. The local authority may say that it does not want any such establishment in the area, yet the shop will continue to trade while the appeal procedure takes place.

§ Mr. Anderson
Was my hon. Friend impressed by the passage in the letter which, in an attempt to reassure retailers, stated that their licence applications would be works of art—drafted by the finest brains in the country and presented by the best solicitors"?

§ Dr. Summerskill
I hope that the Minister has seen the document, because it shows the determination of sex shop owners to continue in their highly lucrative trade. They are trading not to provide a public service, but to make money. As has been said, Earl Grey has been appointed. There was some shyness about giving the Earl's name, but I am sure that he would not be ashamed of everyone knowing that he is the chairman of the board. The document states: soon we hope to appoint a doctor and a former prison governor. These moves improve the public image of the company, and enhance our standing with councils—so we will look (and in reality be) the ideal company to be allocated licences in all towns/ cities where we have shops". It is clear from that that there will be a concerted effort to use the appeal procedure in the most ruthless way to keep sex shops in an area where a local authority may have said emphatically "We do not want any at all".
On balance, I believe that we should agree to the amendment, subject to careful review of how it operates. Taking away the right of appeal is a serious step. I hope that the Minister will undertake that the Home Office will keep the matter under review. Legislation such as this, the 1167 Cinematograph Bill and the Indecent Displays (Control) Bill, takes us into a new sphere. We do not know how it will operate, so it is important to keep it under constant and vigilant review.

§ Mr. Raison
I wish to clear up an issue relating to the previous debate on pop festivals. I referred to a recent pop festival at Pilton. There is some uncertainty about what I said. I intended to say that in the light of what I heard about that festival I believed that it would have been subject to licence. It would have been covered by the provisions.
The debate on sex establishments is important because essentially it is about justice. It is right to devote a little time to thinking carefully about the provision. The House will be grateful to my hon. Friend the Member for Newark (Mr. Alexander) for raising the issue. We might have preferred to gallop on and get through our business rapidly, but that is not the way that the House should conduct itself. It is proper that such a matter be aired. We have had an interesting debate.
Although my hon. Friend the Member for Newark explained his view clearly, I can claim that the general view on both sides of the House is in support of the Government's position. The hon. Member for Croydon, North-West (Mr. Pitt), my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies), my hon. Friend the Member for Portsmouth, North (Mr. Griffiths), and the hon. Members for Swansea, East (Mr. Anderson) and for Halifax (Dr. Summerskill) have come to the view that the Lords amendments are right. That is important.
The ways in which hon. Members have expressed their views are valuable. My hon. Friend the Member for Portsmouth, North gave an account, which has been reiterated, of the way in which sex shop owners would have been prepared to use an appeals system to frustrate the intentions of the legislation. It has done no harm to have a clear picture of that.
Contributions from hon. Members with legal qualifications have added to the value of the debate. I left out of the list of hon. Members who contributed the hon. Member for Islington, South and Finsbury (Mr. Cunningham).
The essence of the argument by my hon. Friend the Member for Newark was that the proposition is against natural justice and that there should always be a right of appeal. I do not think that there is such a right in all other circumstances, but I understand why my hon. Friend argues in that fashion. I accept that we should be careful about forgoing an appeal right. Like the hon. Members for Islington, South and Finsbury and for Halifax, I believe that the Government should think about it again from time to time. We should take care to ensure that the results of our handiwork are examined to ensure that the system is working in an effective and just manner.
The issue hinges on the question who can best judge what is right in a locality. It boils down to the question whether local authorities or the courts are best equipped to make the judgment.
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Magistrates usually have the first bite at the appeal cherry. A case could end up at the Crown court, if the appeal process were fully operated. One cannot say that 1168 the Crown court has the best knowledge of local conditions. The Crown court is concerned with the operation of justice.
As the hon. Member for Islington, South and Finsbury said, the criteria are discretionary and involve judgment. They are almost subjective in their nature. The criteria involve assessments of an area and of whether a sex shop is suitable in that area. Local feelings should be taken into account. After all, local people have to walk past sex establishments and they see the impact that they have on the community.
The tenor of today's debate is that the decision-making power should lie with the local authority as the representative and guardian of the locality. In the last resort there is a possibility of judicial review. My hon. Friend the Member for Newark perhaps underrated the power of the High Court to review a refusal by a local authority. The matter is not complicated. If it is thought, for example, that the council has acted out of mere prejudice, saying simply, "We do not like sex shops", it is likely to be found to have acted ultra vires and the High Court will overturn that decision if asked to do so.
The council must act within the framework of the law. It cannot act in a wilful and prejudiced way. It must have regard to the criteria in the Bill and make its judgment lawfully. The High Court being in the background is a real safeguard and should not be underrated.
The hon. Member for Islington, South and Finsbury and others referred to the nil provision. There has been a little uncertainty about it. The hon. Member said that a nice distinction was entailed. The crucial point to understand is that the local authority making the decision must meet the Bill's criteria for refusal and licensing. That means that it must apply its mind to the circumstances at the time that the application is made. If a local authority has a closed mind, it could be involved in a judicial review.
The nil provision is not a blanket provision that can be decided in advance. I say to my hon. and learned Friend the Member for Thanet, West that the local authority would be unwise to pass a general resolution stating that there should be no sex shops in Broadstairs or anywhere else. The local authority must consider each application on its merits. If it does not, its decision will be overturned by judicial review, for example because the authority had not considered whether there was a change of circumstances since passing the resolution and also because it is unsafe to define the relevant locality until an application is made. It is important to understand that. It is a reiteration of the principle that we have been trying to advance. Each case must be considered carefully and in the light of the criteria.

§ Mr. Anderson
Clearly the local authority must consider each application on its merits, although its consideration would be within the framework of a policy that evolves in relation to a defined area. What is more puzzling is whether the general framework should be in respect of a small area or the entire local authority area. The word "locality" is not defined and there may be different interpretations of it.

§ Mr. Raison
I shall deal with that point in a moment. Provided that the local authority considers each application on its merits and does not take an unreasonable view of the locality in each instance, it could come about that no sex establishments would be allowed in the entire 1169 local authority area. The nil provision makes it clear that it is possible to have no sex establishments in the entire area, but that could be brought about only by considering each application carefully.

§ Mr. George Cunningham
The Minister used the phrase "the local authority must consider each application on its merits" many times. Is that appropriate? It rather implies that even if the local authority is taking its decision under paragraph 11(3) (c) of schedule 3 instead of (d), it must consider the nature of the application, the particular shop and what will happen there. Under paragraph (c), as long as it examines the position in the relevant locality at that time, it can make a decision not on the merits of the application but on its assessment of the desirability of having any sex shop in the locality, given the nature of the locality.

§ Mr. Raison
That is a good point. To talk about taking a decision on the merits of the application is the sloppy language of a layman. A lawyer would use the word "criteria". The criteria are set out in the provisions. I am glad that the hon. Gentleman picked me up on that point because I can now make it clear that we are talking about the criteria contained in the provisions.
The locality is not the same as the local authority area. The locality is the part of the area that might be affected by the presence of a sex establishment. In practice, that will not be as wide as the entire local authority area. However, "locality" is more flexible, because, where a sex establishment is proposed on the border of a district, the local authority may take into account part of the neighbouring district as the relevant locality. A locality is an area with a distinctive character where what happens is interrelated. Therefore, it is right to make the assessment on that basis rather than simply on the basis of the boundaries of the local authorities. It is conceivable that the entire local authority area may be a self-contained locality, but that would be unusual. There may also be a local authority area, all the localities of which are held to be unsuitable for the provision of a sex shop.

§ Mr. Peter Griffiths
Will my right hon. Friend make it clear that, although the locality may not be conterminous with a local authority area, it may cross the boundary of another local authority? I made the point about sex shops affecting areas outside the local authority. There may be a school just across the boundary and the local authority would wish to bear that in mind when making a decision about the establishment of a sex shop.

§ Mr. Raison
That is the point that I just tried to make. Where a sex establishment is proposed on the border of a district, the local authority may take into account part of the neighbouring district as the relevant locality. Blessed and backed by common sense, we are trying to define a locality which, as my hon. Friend said, can cross local authority borders.

§ Mr. George Cunningham
I am grateful to the right hon. Gentleman for allowing me to intervene again. We have difficulties in dealing with such complicated legislation at this stage because we cannot speak twice. Does the Minister feel that it would be permissible for the definition of a relevant locality to be conterminous with a local authority area if the decision was taken under paragraph 11(3)(c), although a common relevant characteristic may be required if it were taking its decision 1170 under paragraph (d)? Under paragraph (c), all that matters is that the local authority considers it inappropriate to have a sex shop in that "area". Therefore, I should have thought that a local authority that took such a decision at the right time in respect of its total area would be all right if it was acting under paragraph 11(3)(c). If there is a doubt about that, the Minister should express it now, so that local authorities can be aware of it when taking their decisions.

§ Mr. Raison
The hon. Gentleman's proposition is probably right. I am sure that I shall have an opportunity today to correct him if I need to. If not, I shall write to him.
In making its judgment, a local authority can look across the border to see how many sex shops there are in the neighbouring district. If the neighbouring local authority does not choose to exercise the powers in the Bill and allows sex shops to proliferate, the local authority may say "There are many sex shops nearby and we do not need any here." That is more or less implicit in what I said to my hon. Friend the Member for Portsmouth, North.
12 noon
The issue turns on whether it is reasonable to regard a local authority area as the relevant locality. For reasons that I have given, it is unlikely that that will happen. Normally a local authority area will be too large to be regarded as the relevant locality, although it is possible in some circumstances that it will be so regarded.
This has been a useful debate on a complicated issue. We have known it to be complicated as we have seen the proposed legislation emerge. We have responded to a good deal of pressure and the record of our debates shows that we have had to think about these issues more than once. However, I believe that we have arrived at the right solution. I urge my hon. Friend the Member for Newark not to express his opposition to the Lords amendment. I hope that he will feel that the answers that I have given broadly meet his case. I acknowledge that when questions of natural justice arise my hon. Friend is right to ensure that the House considers them carefully.

§ Question put and agreed to.