Lord Hoffman (who it has been suggested in the past is a frequenter of Stringfellows) begins his speech as follows:
“The end of the Chatterley ban and the Beatles’ first LP marked a sudden loss of confidence in traditional British prudishness by legislators and jurors which made the law against obscene publications very difficult to enforce. As a result, the distribution of all but the most hard core pornography became, at least in practice, a lawful trade. This gave rise to unexpected social and environmental problems. It was unacceptable for vendors of pornography to flaunt their wares before the public at large. Ordinary newsagents who sold soft porn avoided outraging sensitive customers by putting it on high shelves. Shops which specialised in pornographic publications and videos, together with sex aids and other such articles, tended to have opaque windows, as much to protect the privacy of customers as the sensibilities of passers-by. They congregated in run-down areas of large towns, usually near the railway station, clustering together on the same principle that people carrying on similar businesses have always traded in close proximity to each other. But the other inhabitants of the locality, both commercial and residential, often objected to the proliferation of sex shops on a mixture of environmental, social, aesthetic, moral and religious grounds: fears about the kind of people who ran them and the customers they attracted; distaste or moral or religious objection to what was going on inside; concern that they lowered the tone of the neighbourhood and attracted other even less desirable trades such as prostitution and organised crime.”
He then narrates the complex history of the licensing of sex shops noting,”All these concerns bubbled to the surface in the debate in the House of Commons in 1981 on the second reading of the Local Government (Miscellaneous Provisions) Bill, which contained elaborate provisions dealing with the licensing of premises supplying meals or refreshments, tattooing and ear-piercing (the piercing of other parts of the body does not appear to have been contemplated), acupuncture and electrolysis, but said nothing about sex shops. Honourable members wanted to know why not.”
Two comments – first, I love the parenthetical “the piercing of other parts of the body does not appear to have been contemplated”; and second, the sly dig at MPs.
The judges are careful not to decide the issue of a right to vend pornography. Lord HOffman notes, “I am prepared to assume, without deciding, that freedom of expression includes the right to use particular premises to distribute pornographic books, videos and other articles and, rather more doubtfully, that a person who is denied the right to use his premises as a sex shop is thereby “deprived of his possessions”.”
However, was the refusal of a licence to open a sex shop an infringement of human rights. Baroness Hale is clear. “My Lords, there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast City Centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law. Far too often it entails the sexual exploitation and degradation of women for the titillation of men. But there is always room for debate about what constitutes pornography. We can all think of wonderful works of literature which once were banned for their supposed immorality (my example would be The Well of Loneliness by Radclyffe Hall rather than Lady Chatterley’s Lover, but the point is the same). No-one is suggesting that pornographic literature and images (always supposing that it is lawful) should be inaccessible to those in Belfast who wish to gain access to them. The authors can publish their work in any other medium should they wish to do so, and the public can gain access to them there. Indeed, the City Council has not, as far as we know, refused to license sex establishments elsewhere in the city. There were good reasons for refusing to license establishments in this street and even better ones for refusing this particular company a licence. The suggestion that this is a disproportionate limitation on the company’s right to freedom of expression is to my mind completely untenable. The same applies, a fortiori, to the complaint under Article 1 of Protocol 1.”
It was held, by the way, that the Council was entitled to refuse a licence and did not infringe anyone’s human rights in so doing in that even if freedom of expression and the right to peaceful enjoyment of your property were at issue the council did not act disproprortionately in refusing a licence.