Belfast City Council (Appellants) v. Miss Behavin' Limited (Respondents) (Northern Ireland)

When a court decides whether administrative action is compatible with a qualified Convention right, the decisive question is whether the right was actually infringed. The legality of the outcome does not depend on whether the public authority expressly followed a prescribed human-rights reasoning process. Careful consideration by the authority may nevertheless attract weight and make a challenge harder.

A sex-establishment licensing authority may consider objections received after the statutory period. Timely objections must be considered as of right, while late objections are governed by general administrative law and fairness. If a late objection is considered, its substance must be disclosed to the applicant in sufficient time for a response.

Miss Behavin' Limited applied to Belfast City Council for a licence to operate a sex shop in Gresham Street. The Council refused because it considered nil sex establishments appropriate for that locality. It also relied on matters concerning the applicant, an associated convicted person and earlier unlicensed trading. Sixty-nine of 70 objections had arrived outside the 28-day period in paragraph 10(15) of Schedule 2 to the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985.

Weatherup J dismissed the application for judicial review: [2004] NIQB 61. The Court of Appeal allowed the appeal and quashed the refusal: [2005] NICA 35. The issues before the House were whether the Council could consider late objections, whether it had lawfully done so, and whether the refusal violated article 10 or article 1 of Protocol 1 because the Council had not adequately addressed those rights.

1. Disposition. The House unanimously allowed the Council's appeal and restored Weatherup J's order dismissing the application for judicial review. Lord Hoffmann gave reasons with which Lord Rodger expressly agreed. Baroness Hale, Lord Mance and Lord Neuberger also concluded that the refusal was lawful.

2. Late objections. Per Lord Hoffmann and Lord Neuberger, paragraph 10(15) of Schedule 2 to the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 governs an objector's entitlement. An objection received within 28 days must be considered, but the provision does not prevent the Council from considering relevant information received later. A late objection is governed by ordinary administrative law. The Council may consider it unless doing so is irrational, takes irrelevant matters into account, omits relevant matters, or causes procedural unfairness. If it is considered, fairness requires timely disclosure of its substance to the applicant. Here the Council knew that 69 objections were late, the respondent had ample notice of them, and there was no prejudice or disruption.

3. Convention adjudication. Per Lord Hoffmann, Lord Rodger, Baroness Hale, Lord Mance and Lord Neuberger, section 6(1) of the Human Rights Act 1998 makes the outcome unlawful only if it is incompatible with a Convention right. The court must decide objectively whether the claimant's right was actually infringed. A defective or unarticulated reasoning process does not itself establish a violation of a substantive right. A considered human-rights assessment by the primary decision-maker may nevertheless assist the court and attract due weight. If none exists, scrutiny may be closer and the court must strike the balance itself while respecting the authority's local judgments.

4. Application. Lord Hoffmann and Lord Rodger assumed that article 10 was engaged; Lord Neuberger held that it was engaged at a low level by selling lawful pornographic publications. The licensing regime pursued permitted social, moral and community objectives and allowed a wide area of local judgment. The locality's public buildings, family-oriented shops and places of worship rationally supported a nil determination. The applicant-specific alternative grounds reinforced the refusal. The interference was proportionate. Any property interest under article 1 of Protocol 1 was likewise subject to control in the general interest and added nothing capable of changing the result.

1. House of Lords: Allowed the Council's appeal unanimously and restored Weatherup J's order dismissing the application for judicial review: [2007] UKHL 19.
2. Northern Ireland Court of Appeal: Allowed the respondent's appeal and quashed the Council's refusal. The majority held that late objections could be considered in principle but that the Council had not expressly decided to admit them. The court unanimously also found the consideration of Convention rights inadequate: [2005] NICA 35.
3. High Court of Justice in Northern Ireland: Weatherup J dismissed the application for judicial review on all grounds: [2004] NIQB 61.