'Sending of notice by post (Hansard, 28 July 1982)

§ Mr. Dewar
I beg to move amendment No. 104, in page 126, line 6, leave out 'either'.

Mr. Deputy Speaker
With this it will be convenient to take amendment No. 105, in page 126, line 7, leave out 'or (d)'.

§ Mr. Dewar
This is our second little debate on sex shops. The amendment is serious and I hope that the Minister will consider it sympathetically. To some extent, the Report stage has been conditioned by a long and constructive Committee stage. I hope that that remark does not come into the back-scratching activities that attracted the censure of the hon. Member for Dundee, East (Mr. Wilson), because it is a fair reflection of what happened. As a result of that Committee stage, many of the amendments on Report have been agreed to. Some of those that have not been accepted have seen light skirmishing between hon. Members. At this late stage I do not believe that the Minister will accept many amendments. If he has resisted them in Committee, it will be difficult to change his mind now.
However, I have some genuine hopes for amendments Nos. 104 and 105, because they raise important matters. I do not want to exaggerate the number of times that the sex shop machinery is likely to be used in Scotland. I understood that there are only two sex shops in my city of Glasgow, and only about six in Scotland. Therefore, there is something less than an epidemic of sex shops in Scotland. However, a proposal to open such an establishment generates considerable heat and very strong feelings.
As I withdrew my previous amendment on the subject, it is now common ground that each application must be considered on its merits. If we are in that situation, it is important that we make the safeguards in the schedule adequate. In many ways, on first reading, they appear to be so. If one reads through the schedule, one sees that not only are there careful rules and regulations about intimation, time limits, applications and so on, but important provisions about appeals to the sheriff in circumstances in which a local authority has rejected an application for a licence to operate a sex shop.
Paragraph 22 of schedule 2 says that there is that right of appeal to the sheriff. The sheriff will apply criteria that 1153 are listed if he is satisfied that there has been an error in law, that the local authority has relied on an incorrect material fact, has acted contrary to natural justice and has exercised its discretion in an unreasonable manner. If any of those circumstances applies, the sheriff can either remit the matter to the local authority or alter its decision.
On first reading that looks fine, but if one looks at the small print one finds that, while there is a right of appeal in general, that right of appeal is qualified. If the location has been refused on the ground specified in paragraphs 9(5)(c) or 9(5)(d), there is no right of appeal to the sheriff.
I suspect that almost all the refusals will be in those two categories. I think that I shall have to live with one of them, as I have accepted that the nil quota is part of the grand strategy. Although I did not succeed in restructuring it, I did not attack the fundamental concept that a local authority should be able to say "No, we shall not have a sex shop in a certain area." If one accepts that, it seems fair that there is no point in appealing to the sheriff or appealing to him if one is told that one cannot have one's sex shop as it has been decided that there will be no sex shops in that area.
The amendment does not attempt to reinstate the right of appeal if the refusal is under paragraph 9(5)(c). However, it attempts to reinstate the right of appeal if the refusal of a licence to operate a sex shop is under paragraph 9(5)(d), which states that the grant or renewal of the licence would be inappropriate, having regard—

(i) to the character of the relevant locality; or

(ii) to the use to which any premises in the vicinity are put; or

(iii) to the layout character or condition of the premises, vehicle, vessel or stall in respect of which the application is made."

If we assume that there is a no diktat from the local authority, that is the end of the matter, but there cannot be much of a case for saying that all the splendid criteria of natural justice, material facts and discretion of a reasonable manner should not apply to circumstances in which the refusal has been made because of the location—not only because the area is unsuitable, but because the location in the area is unsuitable, or the layout, character or conditions of the premises are unsuitable. It seems that we are making a mockery of the appeal procedures. We are driving an enormous horse and cart through the appeal procedures. We are making them no more than cosmetic window dressing.
I am not attacking the important nil quota proviso, but I am saying that it is only right that we should preserve the general right to go to the sheriff and say that the criteria of paragraph 22(7) have not been met and he should interfere on behalf of the applicant and instruct the district council to reconsider the matter.
I accept that the Minister is rightly proud of the fact that the Government have been reasonably careful. They have put in some new rights of appeal particularly with regard to taxi licences and appeals to traffic commissioners about taxi fares and so on. The Bill is spattered with useful and important additional safeguards. I am sure that the Minister will agree with me that the point about schedule 2 is that while allowing that there must be adaptations for the specific problem that has been dealt with—sex shops—wherever possible it should duplicate or follow the general lines of schedule 1, which applies to all the other licences that are included in the Bill.
1154 Schedule 1 makes adequate, comprehensive and proper provision for appeal to the sheriff. I ask the Minister to consider including that provision also in schedule 2, with the one very important difference that there should be no appeal if the refusal is due to the nil quota proviso enshrined in another part of the schedule. I believe that with that one exception the general right to go to the sheriff should stand. That would be achieved if the amendments were accepted.
9.45 pm
This is a serious matter. The amendments would strengthen the Bill and the safeguards. If the Minister believes in the rhetoric of the last few minutes about careful consideration and scrutiny and the importance and due place of the processes and safeguards of law, the case for the amendments is very strong indeed. I hope that he will not harden his heart and reject them out of hand. The amendments would in no way endanger the Minister's grand design for sex shops, but the system would be made a little fairer. To quote one of the most valid sayings in the book, the amendments would ensure that justice was seen to be done. The loophole in appeal coverage would then be limited to the one special circumstance of the nil proviso.
I commend the amendments to the House, and I hope that the Minister will take a flexible view.

§ Mr. Allan Stewart
As always, I listened with great care to the hon. Member for Glasgow, Garscadden (Mr. Dewar). As he said, the whole Committee stage was most constructive. That is why there are so many agreed amendments today.
The effect of the amendment would be to provide a statutory right of appeal against refusal of an application for the grant or renewal of a licence when refusal is based on the grounds set out in paragraph 9(5)(d): that the grant or renewal of the licence would be inappropriate, having regard—

(i) to the character of the relevant locality; or

(ii) to the use to which any premises in the vicinity are put; or

(iii) to the layout character or condition of the premises".

I accept that an applicant would still have a common law right to seek to have the local authority's decision reduced in the Court of Session on the ground that it was ultra vires. As I made clear in Committee—I have considered carefully what the hon. Gentleman said on that occasion and today—we believe that in view of their essentially local character, which is the aspect that I emphasise, these matters should be determined by the local authority which is familiar with all the local circumstances. In other words, I stress that the local authority is in the best position to judge the character of the locality and the effect of a sex shop on premises in the vicinity.
I believe that a valid distinction can be drawn between those grounds and questions such as whether the applicant is unsuitable to hold a licence, which would be subject to the full statutory appeal under paragraph 22. I believe that local authorities should have a substantial say in whether there should be sex establishments in their areas. I believe that the distinction that I have drawn is valid. Therefore, with personal regret, I have to tell the hon. Member for Garscadden that on this occasion we shall not reach agreement.