CDE, R (on the application of) v Bournemouth, Christchurch and Poole Council

The claimant sought judicial review of the defendant council's decision (9 November 2021) to adopt a Sexual Establishment Policy which (i) imposed no cap on the number of Sexual Entertainment Venue licences (the No Cap Policy) and (ii) provided an express presumption in favour of renewal for existing SEV licence-holders for the lifetime of the policy (the Acquired Rights Policy). Key legal principles were (a) the scope and limits of objections based on moral grounds in light of R v Newcastle Upon Tyne CC ex p The Christian Institute; (b) the Public Sector Equality Duty under s.149 of the Equality Act 2010 and the requirement to have "due regard" to equality considerations (principles drawn from Bracking and Hotak); and (c) the law on lawful fetters of discretion.

The court held that the council had not conscientiously taken into account the large volume of consultees' sex equality-based concerns (SEB concerns) and had, repeatedly, side-lined them as "moralistic" or outside the scope of consideration. That failure also amounted to a breach of the PSED because there was no evidence of rigorous, documentary or recorded consideration of the statutory s.149 criteria. By contrast, the Acquired Rights Policy did not unlawfully fetter the council's statutory discretion because renewals remained "on application", the policy required consideration of material change in locality and objections could trigger full consideration under paragraph 12 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982.

Background and nature of the claim:

The claimant, a resident and survivor of sexual abuse, applied for judicial review of Bournemouth, Christchurch and Poole Council's decision to adopt a consolidated Sexual Establishment Policy. The policy both removed any numerical cap on SEV licences across the conurbation and provided that the three existing Bournemouth licences would be renewed on application for the policy's duration unless there was material change or objection. The claimant argued that (1) the council failed to have regard to consultees' sex equality-based concerns (SEB concerns) and dismissed them as "moralistic"; (2) the council breached the Public Sector Equality Duty (s.149, Equality Act 2010) and failed to make adequate inquiry; and (3) the acquired-rights provision unlawfully fettered the council's annual licensing discretion.

Procedural posture:

• Permission to apply for judicial review was initially refused on the papers and then granted on renewal by Steyn J. The present judgment is at first instance in the Administrative Court (Choudhury J).

Facts and consultation process:

• The council undertook two public consultations (January 2021 and June–July 2021) on a draft policy that removed numerical limits. The responses were predominantly opposed: the First Consultation recorded 206 responses (about 70% disagreed with no cap; 80% of those were women) and the Second Consultation recorded 176 responses (76% disagreed with no cap for SEVs). Many responses expressed SEB concerns that SEVs objectify women and harm sex equality and women's safety.
• A Working Group, a Licensing Committee and officers prepared an Equalities Impact Needs Assessment (EINA) and other materials. The Working Group and some officer materials characterised many objections as "moralistic" and, in documents considered by members, stated that the majority of consultation comments were "outside the scope of the licensing framework".
• Full Council approved the Policy on 9 November 2021 by a majority (35–14, 13 abstentions).

Issues decided by the court:

1. Whether the council conscientiously took into account the consultation responses, in particular the SEB concerns.
2. Whether the council complied with the PSED (s.149, Equality Act 2010) in substance and with rigour.
3. Whether the Acquired Rights Policy unlawfully fettered the council's statutory discretion to refuse renewal under paragraph 12 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982.

Court's reasoning and conclusions:

• Consultation: the court applied well‑established consultation principles (Coughlan and Nichol) and concluded that the council did not conscientiously take into account the SEB concerns. Although the responses and some research were recorded, the Working Group and committee materials cumulatively showed a pattern of downplaying and side‑lining SEB concerns as "moral objections" and treating most responses as outside scope rather than engaging with them, contrary to the requirement that the product of consultation be conscientiously considered.
• PSED: relying on the principles in Bracking and the Supreme Court in Hotak concerning the need for "due regard" to s.149 duties, the court found there was insufficient evidence of rigorous, conscious consideration of the statutory equality criteria by decision‑makers. The EINA and other materials focused on dancer welfare and immediate safety but failed to demonstrate a proper consideration of the broader aims of s.149 (eliminating discrimination, advancing equality of opportunity and fostering good relations), and officers' assertions that the PSED had been met were not supported by substantive analysis.
• Fetter of discretion: the court interpreted the Acquired Rights Policy objectively. Because renewal under the ARP was expressly "on application", the ordinary renewal application process and the statutory grounds in paragraph 12 would apply; the ARP therefore amounted to a rebuttable presumption giving due weight to long‑held licences and did not unlawfully fetter the council's discretion.

Remedy and outcome:

The court quashed the council's Decision to adopt the Policy because of failure to conscientiously take into account SEB concerns and breach of the PSED. Ground 3 (fetter) was dismissed.

The claim succeeds in part. Grounds 1 and 2 succeed: the council failed to conscientiously take into account consultees' sex equality-based concerns and thereby breached the Public Sector Equality Duty under s.149 Equality Act 2010; the Decision to adopt the Policy is quashed for that reason. Ground 3 fails: the Acquired Rights Policy did not unlawfully fetter the council's discretion because renewals remained "on application" and statutory grounds could be considered.

Permission to apply for judicial review was initially refused on the papers and subsequently granted on renewal by Steyn J. No further appellate history is stated in the judgment.