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

Section 2 of the 1982 Act, so far as relevant, provides:

“[a] local authority may resolve that Schedule 3 to this Act is to apply to their area; and if a local authority do so resolve, that Schedule shall come into force in their area on the day specified in that behalf in the resolution”.

Schedule 3 of the 1982 Act (as amended by the Policing and Crime Act 2009) provides the regulatory framework for the licensing of SEVs. Paragraph 8 of that Schedule provides that:

“8(1) Subject to sub-paragraph (2) and paragraph 12(1) below, the appropriate authority may grant to any applicant, and from time to time renew, a licence under this Schedule … for a sex establishment on such terms and conditions and subject to such restrictions as may be so specified.”

A licence, if granted, lasts for a maximum period of just one year: paragraph 9 of Schedule 3.

Paragraph 12 of Schedule 3 provides the grounds on which an application must, or (as the case may be) may be refused. The mandatory grounds for refusal, which are set out under paragraph 12(1) and which include matters such as being below the minimum age of 18, do not arise in this case and are not repeated here. As for the discretionary grounds, these are set out under paragraph 12(3). So far as relevant, paragraph 12 provides:

Thus, a licence may be refused on grounds relating to the suitability of the applicant (sub-paragraphs (3)(a) and (b)); on grounds that the number of sex establishments is equal to or exceeds the number which the authority considers is appropriate for that locality (sub-paragraph (3)(c); or on grounds that the grant or renewal would be inappropriate having regard to (amongst other things) the character of the relevant locality (sub-paragraph (3)(d)). The “appropriate number” for the purposes of (3)(c) can be nil: sub-paragraph (4).

The Home Office has issued non-statutory guidance on the licensing of SEVs (“Sexual Entertainment Venues: Guidance for England and Wales” (2010)). In dealing with “objections”, the Guidance states that: “Objections should not be based on moral grounds/values”, citing R v Newcastle Upon Tyne CC ex parte The Christian Institute [2001] LGR 165. In that case, the issue was whether a local authority was entitled to grant a licence permitting a company to organise a sex exhibition within its area in the face of objections on “moral grounds” from a local Christian organisation. In dismissing the application for judicial review, Collins J said as follows at 168F to 169C:

“The applicants in this case are a company registered by guarantee, known as the Christian Institute. They are a local organisation in Newcastle and, as their name suggests, they are concerned to promote the Christian ethic. They oppose, on moral grounds, the activities which are intended to be carried on in the course of this sex exhibition. It is a view which is, no doubt, held by many other people than themselves but, equally, it is a view which is not agreed to by many others. So far as I and the local authority are concerned, in carrying out theprovisions of this Act, approval or disapproval of sex shops is not a matterwhich can be put into the equation. It is a question only of applying the provisions of the Schedule. Mr Holland has suggested that the provisions of paragraph 12(3)(c) and(d), do enable the authority and the court to take account of what he hascalled the “moral case against the activities” but, in my judgment, it doesno such thing. What it entitles the local authority to do is to have regardto the character of the relevant locality and, no doubt, to take into account,if it be the case,that there is a strong body of feeling in the locality whichobjects to the existence of a sex shop in that locality. Equally, paragraph (d) makes plain that, in addition to the character of the relevant locality, the use to which any premises in the vicinity are put is also a relevant consideration. Thus, for example, it might be perfectly reasonable to refuse a licence for a sex shop which is in the vicinity of a school or some religious building. That is a recognition that sex shops may attract a particular clientele whose presence may not be considered desirable in some areas and that is something again which can be taken into account, but it has nothing to do with the morality of sex shops as such. It is the effect on the locality and on those living nearby which has to be taken into account and that is the distinction which is drawn. Thus, straightforward objectionson the ground that sex shops should not be allowed to exist have no partto play in my or a local authority’s consideration of the case. Whether I approve or disapprove is nothing to the point. Whether the local authority approves or disapproves is equally nothing to the point, except insofar asthe provisions of paragraph 12 are applicable.” (Emphasis added)

Although that case was not concerned with SEVs, the analysis is pertinent to such venues as well. It might be thought from reading this passage in Collins J’s judgment that there is some bright line distinction to be drawn between those objections to SEVs which are based only on moral grounds and those which are based on other concerns giving rise to a “strong body of feeling” in the locality against SEVs. However, it is clear that other concerns, such as concerns about proximity to a school or a church (which Collins J accepted could be taken into account) could also be grounded on a particular moral outlook even if not expressly articulated in such terms. Furthermore, a person having an objection to an SEV being situated in a particular locality may also be of the view that there should not be any SEVs in any locality. However, does that further “in principle” objection to SEVs render the locality-based objection unfit for consideration by the local authority?

The difficulties thrown up by this attempt to exclude consideration of objections on “moral grounds” was considered in the leading text on licensing in this field: Sex Licensing, Philip Kolvin KC, at 5.46:

“Insofar as Collins J was stating that it is not open to an authority to reason that ‘sex shops are immoral, therefore we shall not have any sex shops’, he was undoubtedly right. But at the other extreme, it is plainly not the function of an Act to prevent any discretion to refuse absent proof of harm. Rather, the character and vicinity grounds give the licensing authority control over the use of urban spaces by sex establishments. It is for the authority to control the use of such spaces on behalf of local people. What local people think may be driven by a number of considerations, amongst which may be moral factors. How different uses should be spatially related may well depend upon one’s views about those uses. One person may not mind, or even notice, if every second premises on the high street is a sex establishment. Another may feel that it is an affront. Undoubtedly, consciously or not, one’s moral outlook will be engaged in that assessment. Thus, the challenge thrown up by the Christian Institute case is not a particularly easy circle to square. It is suggested that the resolution is to approach the matter in the manner of a balanced urban planner rather than as a moral critic of the commercial sex industry, and to set the standards for localities which are in the best interests of communities who live, work and relax in them.”

I agree with that analysis. It is not open to a local authority to exclude SEVs from their area on the sole basis that it considers them immoral: to take such a stance would be to disregard Parliament’s intention that such venues are permissible subject to the conditions for licensing such premises being met. That may have the effect, during a consultation exercise, that responses expressing an objection only on terms that such venues are immoral, will not carry much or any weight in the local authority’s decision. However, a local authority is not thereby precluded from taking into account objections from the local community as to whether there should be SEVs in the locality for other reasons, even if such reasons could be said to derive from or amount to a particular moral stance or outlook on SEVs more generally.

Mr Cannon submits that objections to SEVs “in principle” which would apply regardless of where in the country one might be considering them can be equated to objections on moral grounds and are therefore properly to be disregarded. However, that is to construe “moral grounds” far too broadly and is consistent in my view neither with the legislation nor with the terms of Collins J’s judgment in Christian Institute.

Paragraph 12(3)(c) of Schedule 3 to the 1982 Act permits a local authority to refuse a licence on the grounds that the number of existing SEVs in the locality is equal to or exceeds the number which the authority “consider is appropriate for the locality”, and where such number can be nil. The discretion afforded to the local authority by this provision is a broad one, and there is no stipulated restriction on what factors may be taken into account in determining what is “appropriate”. Mr Cannon submits that the words “for the locality” necessitate a focus on considerations that relate to a particular locality, such that broader concerns, which might apply to any area, are to be excluded. However, in my judgment, those words do not, on a proper construction, serve to limit the considerations which a local authority may permissibly take into account when considering the number of SEVs appropriate for the locality. As Ms Boyd KC (who appears for the Claimant) points out, the wording of this provision contrasts, in this respect, with that of paragraph 12(3)(d)(i), which permits a local authority to refuse a licence on grounds that the grant would be inappropriate “having regard to the character of the relevant locality”. That stipulates expressly for the local authority that the factors to be considered must relate to the character of the locality in question. Had it been Parliament’s intention to limit the considerations under paragraph 12(3)(c), it could have similarly provided thereunder the words, “appropriate having regard to the character of the locality”. That Parliament chose not to do so suggests that the local authority has a broader discretion under 12(3)(c) as to the factors to be taken into account in determining the number of SEVs that is considered to be appropriate. In any case, the difficulty with Mr Cannon’s suggested approach is that many factors which could be said to relate or be relevant to a particular locality may also apply elsewhere. For example, a concern that the presence of SEVs might tend to have an adverse effect on relations between the sexes in a locality could be said to be relevant wherever in the country the location of an SEV was being considered. As such, I do not consider it to be a correct application of paragraph 12(3)(c) to exclude factors which might be said to apply to other localities as well as to the locality in question.

In Christian Institute, Collins J emphasised that whilst it was not for the local authority or the Court to take account of “straightforward objections on the ground that sex shops should not be allowed to exist”, it could take account of a “strong body of feeling in the locality which objects to the existence of a sex shop in that locality”. The SEB concerns expressed at scale in the present case would amount to such a “strong body of feeling”. The fact that some of those SEB concerns might be said to arise from a particular moral or indeed philosophical stance or outlook as to how society should operate does not preclude them from being taken into account. The SEB concerns expressed views as to the consequences of having such venues on relations between sexes and their effect on attitudes towards and treatment of women and girls. These concerns did not therefore fall into the category of “straightforward objections on the grounds that [SEVs] should not be allowed to exist”; rather, they amounted to objections based on the potential consequences and effect of having such venues in the locality. The fact that the logical conclusion of such an objection is that there should not be any SEVs in the locality or at all, does not render the objection a purely moralistic one or one that seeks to challenge the legal permissibility of such venues per se. In my judgment, the Christian Institute case is not authority for the proposition that SEB concerns should not be taken into account by a local authority.

Section 149 of the 2010 Act enacts the PSED and provides as follows:

In R (Bracking & Others) v Secretary of State for Work & Pensions [2013] EWCA Civ 1345, (in a summary approved by the Supreme Court in Hotak v Southwark LBC [2015] UKSC 30 at [73]) the applicable principles were identified as follows:

“(1)

…equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

(2)

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements…

(3)

The relevant duty is upon the Minister or other decision-maker personally….

(4)

A [decision-maker] must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 – 24].

(5)

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:

(a)

The public authority decision-maker must be aware of the duty to have “due regard” to the relevant matters;

(b)

The duty must be fulfilled before and at the time when a particular policy is being considered;

(c)

The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

(d)

The duty is non-delegable; and

(e)

Is a continuing one.

(f)

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

(6)

“[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.”

(7)

Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be “rigorous in both enquiring and reporting to them”.

(8)

The combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it.”

In Bracking,the Court also referred to the decision of Elias LJ in R (Hurley & Moore) v Secretary of State for Business, Innovation & Skills [2012] EWHC 201, recognising the duty of sufficient enquiry in this context:

“89 … the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required”.

The SEB concerns would undoubtedly be relevant to PSED-compliant local authority decision-making as they relate to, amongst other things, the need to eliminate discrimination, harassment and victimisation of women. To read the Christian Institute case (which was decided before the PSED came into force) as somehow precluding any consideration of SEB concerns (whether because they are seen as “moralistic” or as not pertaining to the locality) in determining what licensing policy to adopt is, in my judgment, to ignore the requirements of the PSED. For reasons already stated, there is nothing in the terms of paragraph 12(3)(c) of Schedule 3 to the 1982 Act that requires such a narrow approach. Moreover, as Ms Boyd submits, it would be curious, to say the least, if a local authority, in the sphere of SEV licensing, was prohibited by the terms of the 1982 Act from taking into account SEB concerns that, pursuant to the PSED, would be mandatory considerations in other contexts.

The three grounds on which the Claimant was granted permission are as follows:

Ms Boyd KC submits that the Defendant has failed to comply with one of the four key requirements of a lawful consultation, namely that “the product of consultation must be conscientiously taken into account”, before deciding upon policy: see Nichol v Gateshead MBC (1988) 87 LGR 435 at 452. The First and Second Consultations asked for views on whether there should be no cap. There were numerous objections to the NCP many of which were based on SEB concerns and/or which advocated a zero cap. However, the Defendant repeatedly disregarded these as being “moralistic” or personal concerns or “in principle” objections not within the scope of consultation. Insofar as the SEB concerns were acknowledged, Ms Boyd submits that the Defendant did not conscientiously engage with them. There is no support in either the statute or the caselaw for the Defendant’s approach that any concerns not focused on the locality cannot be considered. Whilst the discretion available to the Defendant is to be exercised in the context of the locality, it is not thereby precluded from taking into account general concerns (such as the SEB concerns) which might apply wherever an SEV is located. The Defendant’s approach is said to be inconsistent with giving communities a greater say in whether and where SEVs should be licensed in their area.

Mr Cannon, who appears with Ms Parekh for the Defendant, submits that the Defendant did take the SEB concerns into account. That is evident, submits Mr Cannon, from the numerous documents placed before the Members, several of which refer expressly to SEB concerns, and from the minutes of the Full Council meeting on 9 November 2021 from which it can be seen that several Councillors were also strongly advocating a zero cap based on such concerns. In these circumstances, it is simply not possible to say that these matters were left out of account. Mr Cannon further submits that, insofar as certain objections were kept out of account, that was consistent both with the law and guidance, which deems moralistic or in principle objections irrelevant, and with the scope of the consultation, which was not about whether SEVs should exist but about where they should be located.

What does a proper consultation require? In the well-known case of R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, the Court of Appeal stated as follows:

It is this fourth requirement, namely that the product of consultation must be conscientiously taken into account, that is relevant to this case. To satisfy this requirement, a local authority would generally have to go further than merely acknowledging the product of consultation. The conscientious taking into account of consultation responses could, depending on the context, involve considering and, where appropriate, analysing such responses, undertaking, if appropriate, any further investigation necessary, and ensuring that the decision-makers are properly apprised of the product of consultation insofar as it is relevant to their decision-making.

The key factual dispute at the heart of this case lies in whether the SEB concerns raised by a large number of consultees were taken into account. In deciding this issue, the Court only has the various documents produced during the process leading to the Decision made by Full Council on 9 November 2021, the Defendant having elected not to rely on any evidence in the form of witness statements to supplement and/or explain what is contained in the documents. Ms Boyd submits that, to the extent that those concerns are referred to in the documents, the Defendant has done no more than acknowledge them, whereas Mr Cannon submits that it cannot be said that SEB concerns have illegitimately been left out of account. Mr Cannon took the Court through the documents in some detail in an attempt to demonstrate that SEB concerns were taken into account. Notwithstanding the elegance and concision of his submissions, I have come to the view that the SEB concerns raised by consultees, although referenced by the Defendant at various stages, were not the subject of conscientious consideration by it and were instead treated as largely irrelevant to its decision.

Mr Cannon reminded the Court that the draft policy being consulted on was one that did not seek to impose any cap on SEVs and which would instead consider applications for SEV licenses on a case-by-case basis against locational criteria. He submits that the First Consultation which asked, amongst other things, whether the Defendant “should not seek to limit the number of sex establishments in any given area” was not to intended to invite responses that there should not be any SEVs at all. However, any response disagreeing with the proposed policy would necessarily be contending for a cap of some sort; given that a cap of nil is a permissible statutory option, it is unsurprising that some consultees would contend for a nil cap. Moreover, the First Consultation also invited general comments on the draft policy. Unsurprisingly, once again, that too elicited many responses objecting to the presence of any SEVs. The form and context of the consultation question were such that responses objecting to the presence of any SEVs or effectively advocating a nil-cap were within the scope of the consultation.

The First Consultation Report did refer to some of these responses and noted that:

“Those opposed to SEVs described the venues and the activities within them as degrading and abusive to women, As such, many felt that the council would be failing in its equalities duty if such venues were permitted.”

Mr Cannon submits that, far from denouncing such views as irrelevant, the Second Consultation Report actually sets out some examples, and it cannot therefore be said that these responses were left out of account. Had the First Consultation Report been left for the Full Council to consider without any further qualification or steer from the Working Group or LC, that argument might have been persuasive. However, as the minutes of the Working Group and subsequent documents show, that was not what occurred.

Mr Cannon reminded the Court that the Working Group was tasked with considering the consultation and making recommendations for the Defendant to consider, and that it was not itself a decision-making body. That may be so, but clearly, the recommendations that the Working Group made and the views that it expressed were expected to be taken into account. Those recommendations and views cannot be disregarded as having had little or no impact on the decision-makers. It is therefore instructive to examine what the Working Group said about Questions 1, 3 and 4 in the First Consultation and the responses thereto. These are set out at paragraph 20 above. As can be seen, the views of the majority objecting to the proposal that there should not be a limit on SEVs, appear to be dismissed by the Working Group on the basis that the LC had already determined that the setting of a limit was unnecessary. There certainly does not appear to be any conscientious engagement with the responses or the reasons given for them even though, as stated above, responses advocating a limit (whether that be a limit of nil or otherwise) were within the scope of the First Consultation.

Question 3 had asked for feedback on other locality considerations. Although it was noted that there were 82 responses, the majority (46) of which stated that no locality was suitable and that sex establishments should not be allowed, the Working Group’s response was merely to state that such establishments are “legally permitted” and that these responses “were not in line with the objectives of the policy which is to control the location and operation of any of these premises”. Mr Cannon submits that the Working Group was merely noting here that the responses were not apt to answer the question, and that, as such, the responses were not disregarded, but merely disagreed with. I do not accept that submission. Whilst a local authority is entitled to conduct consultation in terms that express a preferred option (see e.g. Nichol v Gateshead MBC (1988) 87 LGR 435 at [451, 456 and/or 463]), that does not permit it to shut its ears to responses that advocate another option within the scope of the consultation. Here, it is clear that the context was whether the Defendant should not impose any cap. Responses which advocated a cap, including a nil cap (i.e. that there should not be any SEVs in the locality), were within scope. The fact that SEVs were “legally permitted” does not justify the blanket discounting of such responses, when other options within the scope of the consultation (e.g. a reinstated cap or a nil cap) were equally “legally permissible”.

Mr Cannon further submits that these responses, which were in terms that “no locality was suitable”, were not apt to answer the question because they did not focus on the locality. However, a response which provides that no locality is suitable also means that the locality in question is not suitable. Even if the absence of specific locality considerations could justify the disregarding of these responses as inapt to answer the question, the same cannot be said of Question 4 in the same consultation, which merely asked for any other comments. Although it was recognised by the Working Group that a “high number” of these comments opposed the licensing of SEVs, it was said that “on examination the majority of these are on moralistic grounds which are not for consideration within this policy guidelines”. Thus, the Defendant has, at a stroke, disregarded a substantial proportion of the responses despite inviting general comments on the Policy.

Mr Cannon accepted that if the consultation process had stopped there, it would be difficult for the Defendant to say that the PSED had been complied with. He therefore relies on subsequent documents, the next of which is the slide presentation prepared for a Members briefing held due to the strength of feeling on this issue. The content of the slides is summarised at [25] above. It included the Working Group’s view that many of the responses had objected to the venues “on moral grounds, which cannot be considered”. Mr Cannon submitted that it was correct to include that in the presentation to members. However, as stated above, the Working Group has adopted a blanket rejection of all responses which advocated there being no SEVs at all on the basis that such “in principle” objections to SEVs equated to objections on moral grounds. For reasons stated already, that approach was incorrect. The SEB concerns expressed in many of the objections could not legitimately be characterised as merely being on moral grounds. It is right to point out, as Mr Cannon emphasises, that the next slide, headed “Equalities Impact Assessment”, does mention that “There are suggestions that venues normalize the objectification of women and can have an impact on women’s safety in the locality”. That is undoubtedly a reference to one of the matters raised in the SEB concerns. However, what is not made clear is the strength of feeling on this issue as indicated by the number of responses raising SEB concerns. By adopting, through the Working Group, a blanket rejection of such concerns as not being relevant or not to be considered, the Defendant has diminished the force with which such concerns were raised during the consultation. This is not a question of the weight to be attached to responses after proper consideration, which is a matter for the local authority, but of their fair treatment, which is part and parcel of the duty to have conscientious regard to them.

As to the Second Consultation Report, Ms Boyd agrees that it does set out some of the SEB concerns and that it does not of itself suggest that these should be disregarded. She submits, however, that there is limited engagement with or analysis of these SEB concerns, the report focusing instead on community safety and dancer welfare concerns. Furthermore, Ms Boyd relies on the minutes of the LC meeting on 16 September 2021 which considered the Working Group’s review of the Second Consultation, and in which the LC notes that “the majority of consultation comments were outside the scope of the licensing framework and as such cannot carry weight in the decision-making process.”. Mr Cannon submits that the LC here was merely setting out the views of the Working Group but was not endorsing them; that is confirmed, he submits, by the fact that the very next paragraph of the minutes states that the “Licensing Members were asked to further consider the consultation responses and to agree the final wording of the policy which will then be recommended to full council for approval.” That invitation to “further consider the consultation responses” would not have been issued, submits Mr Cannon, had the LC regarded the majority of them to be irrelevant.

Skilfully though that submission was made by Mr Cannon, I do not accept it for the following reasons:

The LM report also set out four questions from Councillors and the responses given. The first was from Councillor Northover who sought assurance that the comments which have not been considered because they were objections on moral grounds are not in fact legitimate concerns from women about safety. That question was asked in light of an acknowledgement by Sheffield City Council in another case that it had wrongly ignored SEB concerns on the basis that these amounted to “moral objections and irrelevant”. The response to that question (from the Senior Solicitor (Litigation Team)) referred to the fact that Sheffield had acknowledged a failure to comply with the PSED in deciding to grant a new SEV licence and suggested that that was the basis on which it had ended up ignoring certain concerns as irrelevant. Ms Boyd submits that in doing so, the Senior Solicitor had put an inaccurate gloss on the Sheffield decision in that the acknowledged PSED failure therein was separate from a further arguable issue which concerned the incorrect rejection of SEB concerns as “moral concerns”. I have been shown the relevant orders from the Sheffield case. It is correct to say that the Senior Solicitor’s suggestion to Councillor Northover that Sheffield’s acknowledged and alleged failures all stemmed from a failure to comply with the PSED was not quite accurate; there was a separate and distinct arguable issue in that case, as there is here, that Sheffield Council had incorrectly rejected objections based on SEB concerns as “moral objections and [therefore] irrelevant”.

The Senior Solicitor does refer in her response to the Defendant’s compliance with PSED and the need to consider the “potential impact on gender equality”. However, the mitigating actions focus almost entirely on community safety and dancer welfare issues rather than the impact on gender equality. Mr Cannon submits that the response focused on safety because that was what Councillor Northover’s question was addressing. However, that does not answer the key question which was whether the Defendant had ignored SEB concerns on the grounds that these were moral concerns, just as Sheffield had allegedly done. In my judgment, the Senior Solicitor’s response, which was given in writing before the relevant meeting, reveals the Defendant’s continued downplaying or rejection of SEB concerns as matters which were not really within the scope of the consultation. The fact that the mitigating actions fail to address any such concerns is indicative of a failure to engage conscientiously with them. Mr Cannon submits that it is difficult to conceive of any mitigating action in respect of the SEB concerns short of not having any SEVs at all. That does not appear to me to be correct. I agree with Ms Boyd that proper engagement with the SEB concerns might have resulted in other mitigating actions, such as the obtaining of or considering further research (consistent with the duty to make reasonable inquiry) on the effects of SEVs on attitudes to and treatment of women and children more generally. Such research does undoubtedly exist: there were several examples in the papers before me, including one prepared in support of a draft policy in Bristol that no SEV licences should ordinarily be granted within any of the localities within that local authority area.

Councillor Filer asked if the LC was aware that the PSED required the Defendant to consider the impact on all women, not only in the clubs but in the vicinity and wider society. The Senior Solicitor in response referred to the answer given to Councillor Northover and said: “Yes the Licensing Committee should be aware that their PSED includes the impact of [SEVs] on all women in the vicinity and wider society and I believe that has been done by consideration of evidence before [the LC] to date”.

Whilst there is here an acknowledgement of need to consider the impact on all women in the vicinity and wider society, there is little to show that there was any conscientious consideration of such impact. There is nothing in the responses to either Councillor Northover or Filer to indicate such consideration, and the mitigating actions (as I have said) focus instead largely on safety issues rather the impact on women more generally. There is, in particular, a distinct absence of any action addressing the broader SEB concerns. That absence tends to support the impression given elsewhere that these concerns were effectively side-lined as being “moral objections” that are not relevant to the Defendant’s policy decisions.

Mr Cannon also relied upon the EINA and the EIACE. As to the EINA, Mr Cannon acknowledged that, on its own, it does not address the SEB concerns and the points being made by the Claimant. The EINA focuses on harassment of women in and around the venues and on dancer welfare. As with other documents, there is little or nothing in this document addressing broader SEB concerns, although it should be noted that this pre-dated the First Consultation.

The EIACE is undated, but refers to the responses to the First Consultation. It does not contain any reference to the responses to Second Consultation. Under a heading. “What sources of research and evidence do we currently have and what does it tell us?”, there is reference to “Other research into [SEVs] has concluded that: Lap dancing clubs normalise the sexual objectification of women”. Ms Boyd acknowledges that that is a reference to an aspect of the SEB concerns upon which she relies. However, she submits that one looks in vain in the EIACE for anything addressing such concerns and that what one finds instead is a focus on community safety and dancer welfare concerns. Mr Cannon submits that this is further evidence that the Defendant did not disregard the SEB concerns. However, I agree with Ms Boyd that there is little or nothing here to demonstrate anything beyond mere acknowledgement of the SEB concerns; there is certainly nothing to indicate any real engagement with such concerns.

The final document to which I was taken is the minutes of the Full Council meeting on 9 November 2021 at which the Decision was taken. It is not in dispute that the Full Council had before it the Briefing Paper, the First and Second Consultation Reports, the Slides, the EINA and the EIACE. As set out above, a number of Councillors expressed strong objection to the Policy, some doing so on the basis of SEB concerns. Mr Cannon relies on the fact that no one sought to suggest at Full Council that such objections were irrelevant. That is certainly true. However, Councillor Butt, Chair of the LC, having heard the various concerns, stated, “But these worries are not those in the locale.” Once again, the concerns were downplayed and/or side-lined, this time on the basis that they did not relate to the locality.

Based on this review of the documents, and in the absence of any witness evidence from the Defendant, I conclude that Ms Boyd’s submission under Ground 1 is made out. That is to say, the product of the two consultation exercises, insofar as it related to the SEB concerns, was not conscientiously taken into account before deciding upon the Policy. I reach this conclusion with some reluctance because the Defendant has undertaken an otherwise diligent and extensive consultation. Regrettably, however, and possibly as a result of construing the Christian Institute decision too broadly, the Defendant has consistently downplayed and/or side-lined SEB concerns which ought to have been the subject of conscientious consideration before reaching a final decision. As such, Ground 1 succeeds.

Ms Boyd submits that, having regard to the “heavy burden” (Bracking at [60]) which the PSED imposes on public authorities and the need for the decision maker to “properly appreciate[..] and address[..] the full scope and import of the matter which she [was] obliged to consider pursuant to the PSED” (Bracking at [77]), it is clear that the Defendant did not comply with the duty. The lack of conscientious engagement with the SEB concerns under Ground 1 is itself evidence of a failure to comply with PSED. Moreover, whilst passing reference was made to the PSED at various points, none of the material before the Court suggests that LC members were, at any stage, directed to the specific requirements under s.149(1), (3) and (5) of the 2010 Act or that any of these matters were considered in adequate detail or with the necessary rigour.

Mr Cannon submits that one should focus on substance and not on form and the mere fact that the court might have attached more weight to the equality implications of a decision would not entitle it to interfere (Bracking at [26(5)(iii) and (8)]). He further submits that the requirements set out by the Court of Appeal in Bracking are not to be treated as provisions in a statute and must be viewed in context; there the decision was that of a Minister in respect of a policy having national effect whereas the decision-making here only had a local impact. The same degree of rigour in complying with the PSED cannot be expected here. In the present case, the documents before the Full Council, and in particular the Briefing Document, establish not only that the PSED was carefully considered but also that the duty to have due regard to the need to achieve the goals identified in paras (a) to (c) of s.149(1) of the 2010 Act was met.

The applicable principles in considering whether the PSED has been complied with were summarised in Bracking and are set out at [50] above. I can quickly dispense with Mr Cannon’s arguments that these principles do not apply with the same degree of rigour in this context, which is different to that in Bracking. Whilst it is right that the precise weight and extent of the duty will be fact-sensitive, there is nothing in the Court of Appeal’s decision in Bracking to suggest that the principles therein were not applicable to public authority decision-making generally. Moreover, those principles were expressly approved by the Supreme Court in Hotak & others v London Borough of Southwark [2015] UKSC 30, a decision considering compliance with the PSED in the context of local authority decision-making: see Hotak at [73]. In Hotak, Lord Neuberger went on to say:

“75.

As was made clear in a passage quoted in Bracking, the duty “must be exercised in substance, with rigour, and with an open mind” (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that “there has been rigorous consideration of the duty”. Provided that there has been “a proper and conscientious focus on the statutory criteria”, he said that “the court cannot interfere … simply because it would have given greater weight to the equality implications of the decision”.

It is clear, therefore, that the Bracking principles apply unalloyed in relation to the Defendant’s decision-making, and the question for this court is whether there has been “rigorous consideration” of the PSED based on a “proper and conscientious focus on the statutory criteria”.

Whilst there was mention of the PSED at various stages, I am not satisfied on the material available that there was rigorous consideration of it with a proper and conscientious focus on the statutory criteria. I say that for the following reasons:

Mr Cannon warns against the taking of a hypercritical approach resulting from an over-forensic analysis of the Defendant’s documentation. However, none of the above conclusions derives from such an approach. The conclusion that the PSED was not complied with follows from the application of well-established principles as to what is required of the decision-maker. Ground 2 succeeds.

The ARP is set out at paragraph 10 of the Policy. So far as relevant to this ground, it provides:

“10.1

It is acknowledged that there are currently three licenced Sexual Entertainment Venues within the Old Christchurch Road and Yelverton Road areas of Bournemouth Town Centre. These are For Your Eyes Only, Wiggle and Spearmint Rhino and that these venues have been licenced for a number of years.

…

10.4

It has been determined that these existing licences will continue to be renewed, on application, by the existing operators during the lifetime of this policy if there is not material change in the character of the area in the intervening period. If there are any objections to an application, it will be considered by the Licensing Committee in accordance with the relevant statute. This essentially provides acquired rights to these existing operators for the current time.”

Mr Cannon provided further explanation as to how the ARP would work in practice. He emphasises that, as the ARP provides, renewal is not automatic in that an application for renewal still needs to be made in accordance with paragraph 13 of the Policy. Paragraph 13 of the Policy provides that any such application is to be made in writing and is to be the subject of public notice. The application process also requires the applicant to complete a personal information form and submit a recent DBS certificate. The applicant’s suitability to hold an SEV is determined using this documentation and in consultation with the Dorset Police.

I am conscious that there is no witness statement confirming these operating procedures and that Counsel cannot give evidence as to such matters. However, the stated ARP does provide that existing licenses will continue to be renewed, “on application”. That, and the reference in paragraph 13.1 of the Policy to the need to make an application for the “grant, renewal, …” of a licence does suggest that renewal is not automatic and that an application is still required. I therefore proceed on that basis.

Ms Boyd submits that the ARP has the effect of fettering the Defendant’s discretion in relation to the issuing of SEVs. Paragraph 12 of Schedule 3 to the 1982 Act confers a discretion on the Defendant to refuse the grant or renewal (annually) of an SEV licence on the discretionary grounds set out in paragraph 12(3)(a) to (d). By conferring acquired rights and stating that licences “will be renewed” save where there is a change in the character of the locality or where there is an objection, the Defendant is precluding itself from a proper exercise of the discretion under paragraph 12(3). Whilst the Defendant is entitled to formulate a policy to direct the exercise of discretion subject to being open to exceptions (see R (Westminster City Council) v Chorion plc [2002] EWHC 1104 (Admin)), it cannot, submits Ms Boyd, limit the exercise of discretion only to those cases where an objection is raised.

Mr Cannon submits that the effect of paragraph 10.4 of the Policy is to set up a rebuttable presumption that licences held by Existing Licensees will be renewed upon application if: (i) there is no change in the character of the locality; and (ii) there are no objections. If there is a change or an objection then the application will fall to be considered in the usual way. In so doing, the ARP permissibly gives weight to the fact that an SEV licence was previously granted and aids decision-making in the case of Existing Licensees. It is further submitted that the discretionary factors are not excluded from consideration. The requirement for an application for renewal to be made in accordance with paragraph 13 of the Policy would enable the Defendant to check whether the discretion to refuse should be exercised because, for example, the applicant has been convicted of a criminal offence since the previous grant of an SEV licence. The requirement that, for the ARP to operate, there has been no material change in the character of the locality in the intervening period means that the Defendant takes this discretionary factor into account. In the event of an objection, the application is determined by reference to the statutory criteria with no presumption of renewal.

On this issue, Mr Cannon’s submissions are to be preferred. In fact, the reason for the claim under this ground may be the result of a lack of clarity as to how the ARP would operate in practice, and, in particular, whether renewal would be granted automatically or only upon an application being made. Ms Boyd accepted in reply that if the ARP operated such that an application for renewal had to be made and that any such application was processed in accordance with paragraph 12 of the Policy, then the Claimant could not maintain her objection. She maintained, however, that that was not how the ARP’s operation had been characterised by the Defendant in its Detailed Grounds of Resistance, and it is not how one would interpret it on an objective reading. Notwithstanding what is said in the DGR, I consider that, on an objective reading of the provision, it is clear that an application would be required: there is express reference in paragraph 10.4 of the Policy to the renewal being “on application”. In the absence of any provision creating an exception for applications pursuant to this paragraph, the application process described in paragraph 13, which refers to applications for grants and renewals, would apply. The operation of that process means that the first of the discretionary factors to be considered under paragraph 12(3)(a) of Schedule 3 to the 1982 Act, namely that relating to the applicant’s suitability, is invariably considered.

Furthermore, as the ARP expressly provides, “…existing licenses will continue to be renewed on application by the existing operators during the lifetime of the policy if there is not material change in the character of the area in the intervening period”. That necessarily means that upon any such application, the Defendant will need to consider whether has been such change. If there has, then the presumption in favour of renewal falls away and the application is considered against the statutory criteria. That would include for example, the discretionary factor in paragraph 12(3)(d)(i) of Schedule 3 to the 1982 Act, namely the character of the relevant locality.

I accept that the operation of the ARP means that the Defendant may not, in the event of there being no change in the character of the locality, expressly turn its mind to each of the remaining statutory discretionary factors under paragraph 12(3)(d)(ii) and (iii). However, there would only be an unlawful fetter on the exercise of discretion if the effect of the ARP was to preclude the exercise of discretion in every case: see R (Dickinson) v HMRC [2019] 4 WLR 22 at [56]. The ARP does not have that effect. As already discussed, at least two of the discretionary factors are considered in every case of renewal. As to those which are not so considered, the ARP does not preclude their consideration: the exercise of the discretion can be triggered at any time after the publication of the application by the raising of an objection. Ms Boyd submits that this places the onus on members of the public who would have to raise an objection before one or more of the statutory discretionary factors is considered. However, it does not appear to me that the need for such intervention means that there is a fetter on the exercise of discretion. The ability of an interested party or any person to raise an objection, and thereby trigger the exercise of discretion, of itself demonstrates that the Defendant has not closed its mind to such exercise or the consideration of matters that would result in the acquired rights not being conferred in a particular case.

In my judgment, the ARP does no more than give due weight to the fact that the Existing Licensees had held licences for a number of years. That is perfectly permissible and indeed appropriate. In R v Birmingham City Council ex p Sheptonhurst Ltd [1990] 1 All ER 1026, the Court of Appeal considered a claim by a sex shop owner that it was perverse of the local authority to refuse a renewal of his licence where there had been no change in the character of the area in the intervening period. O’Connor LJ, in rejecting that claim, stated as follows at 1035g to 1036b:

“Counsel for the appellants submitted that Parliament cannot have intended that the vagaries of local opinion should be determinative of an existing trader’s right to continueto trade. He pointed to the limited grounds for revoking a licence found in para 17 ofSch 3 to the 1982 Act and to the preference to be given to existing businesses at inceptioncontained in para 29 of Sch 3. I see the force of this submission, but where Parliament,having expressly limited the grounds on which a licence may be refused, has drawn nodistinction between grant and renewal of the licence and provided that a licence shall notlast for more than a year, then it seems to me that to accede to the submission of counselfor the appellants would be to introduce a fetter on the discretion of the local authorityin cases of renewal, which Parliament has not done. However, although the discretion isunfettered, there is a difference between an application for grant and an application forrenewal and that distinction, as the cases have pointed out, is that when considering anapplication for renewal the local authority has to give due weight to the fact that a licencewas granted in the previous year and indeed for however many years before that. It is ofparticular importance that the licensing authority should give due weight to this fact inthis field, for I do not doubt that there is opposition to sex shops on grounds outside thelimits imposed by para 12 of Sch 3. I have come to the conclusion that the licensingauthority were entitled to have a fresh look at the matter as the chairman of the sub-committee states in his affidavit, which I have set out earlier in this judgment. In a casewhere there has been no change of circumstances, if the licensing authority refuses torenew on the ground that it would be inappropriate having regard to the character of therelevant locality, it must give its reasons for refusal: see para 10(20) of Sch 3. If thereasons given are rational, that is to say properly relevant to the ground for refusal, thenthe court cannot interfere. I believe this to be the true protection for a licence holderapplying for renewal against a wayward and irrational exercise of discretion. The factthat in previous years the licensing authority did not choose to invoke those reasons forrefusing to grant or renew the licence does not make the reasons irrational.” (Emphasis added)

For these reasons, Ground 3 of the claim fails and is dismissed.

For the reasons set out above:

It follows that the Decision to adopt the Policy is quashed.