Oxford council arbitraily banned Oxford's table dancing club, The Lodge. The High Court initially backed the council's decision but now the club owner has been granted to appeal against the ban at the Court of Appeal. Club owner Al Thompson said:
"Following on from our surprise at the Judicial Review we are pleased to have confirmation that the Court of Appeal has granted us permission to appeal the High Court decision."
The Lodge was forced to close in June when the city council denied it an entertainment licence.
Oxford City Council refused a sex entertainment licence for The Lodge for no particularly good reason except that the council had changed its mind after being petitioned by morality campaigners.
Then licensee, Alistair Thompson, asked for a Judicial Review of the council decision but was recently turned down by the High Court, more or less confirming that the council can change its mind if it wants to.
It seems that Thompson is set to appeal the ruling, and that if so, then The Lodge should be able to continue operating until that appeal is heard.
Now lawyers at Blake Lapthorn have made some pertinent comments about the council licence rejection:
Despite the fact that Mr Thompson had been granted a licence, and that the premises were in exactly the same place as the year before, with no one having complained about his operation of the premises, he had been deprived of the licence to
operate. He argued he had spent tens of thousands of pounds on a business and provided considerable local employment into the bargain, on the back of his licence which was granted to him but which had now been taken away from him through no
obvious fault of his own.
The argument that a premises licence is an item of property that attracts property rights under international and domestic human rights law does not seem to have been argued fully before the High Court. However in his evidence before the Sub
Committee Mr Thompson pointed out that he had invested tens of thousands of pounds in good faith on the strength of his being granted a licence only to see the rules change and him having to surrender that licence despite the fact that the
premises had been operating perfectly happily and no one ever having complained about the running of the venue.
We cannot imagine that the public at large would consider it could be right to permit a business to operate under licence so that they invest in their business only to change the rules and require them to have to get another licence every year.
Guidance issued by the Secretary of State accepts that it is improper for Council's to grant licences, then adopt a Cumulative Impact Policy and then seek to curtail the hours of operation etc of premises under those licences by means of a
premises licence review. The analogy with the present case is clear.
It must be right that a person who is granted a licence to carry on an activity at premises must be allowed to continue with that activity until such time as there is sufficient complaint about the use of those premises for that activity. That
did not happen in Salisbury and it did not happen in Oxford, yet Mr Thompson is now deprived of his licence.
An interesting newsletter from a law firm discussed legal issues arising Leeds City Council considering the lap dancing licences for the 7 clubs in the area.
First of all it noted that an existing licence is consider in law as a protected possession in human rights law:
It has been accepted that a licence is classed as a possession capable of protection under Article 1 of the First Protocol of the European Convention on Human Rights.
This clearly states that a person has a right to peaceful enjoyment of his possessions and the case of Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR classifies a licence as something capable of protection.
Not something that can councils can take away on a moralist or feminist whim.
Secondly there are European requirements imported into UK law that impose standard conditions on councils when considering licence applications:
The Provision of Services Regulations [S.I. 2009/2999]. Regulation 24(1) imposes three important tests highlighting that any refusal must be:
Surely this would allow failed applicants to ask a court 'exactly how necessary was it for a council to refuse a license for a venue 200m away from a school where the operating hours don't overlap?'
The law firm noted that all 7 clubs in Leeds got their licences despite a high level of opposition from MPs, councillors and Object.
Coventry Women's Voices asked Dr James Harrison (co-director of the Centre for Human Rights in Practice at the School of Law in the University of Warwick) about the legality of council bans on lap dancing.
Sexual Entertainment Venues -- A rational decision that no venues should be granted licenses in a particular area will not breach human rights law
Local authorities must make some form of assessment of the character of the locality as the basis for any decision that nil is the appropriate number. However, as long as local authorities make some form of rational assessment of the character
of the area this is highly unlikely (one could even go as far as to say almost impossible) to be subject to any kind of successful legal challenge. The courts have always given a great deal of discretion to public authorities in cases where they
are exercising this kind of social control. Unlike in issues of fair trial or arbitrary detention, this is not an area where judges see themselves as particular experts, they therefore tend to defer to the greater knowledge and sensitivity of
In the case of Belfast City Council v Miss Behavin' Ltd (Northern Ireland) the House of Lords found that there was no breach of Article 10 (freedom of expression) or Article 1, Protocol 1 (right to property) of the European Convention of Human
Rights because Belfast City Council had failed to grant a licence for a sex shop on the basis that the appropriate number of sex shops in the relevant locality was nil.
The judges in the House of Lords found that Article 10 and Article 1 Protocol 1 were engaged but at a very low level -- Access to pornography was not seen by the judges as a very important issue that needed high levels of protection. This
means that a local council will almost certainly be justified in restricting those rights as long as it makes its [nil policy] decision in a rational and reasonable way and in relation to each application it receives.
The basic changes are that Sexual entertainment venues are now to be separately licensed from general bars.
Sexual Entertainment Venues are defined as having live performances including nudity that are intended as sexual stimulation. Events happening less than monthly are exempted
(1) In this Schedule sexual entertainment venue means any premises at which relevant entertainment is provided before a live audience for the financial gain of the organiser or the entertainer.
(2) In this paragraph relevant entertainment means—
(a) any live performance; or
(b) any live display of nudity;
which is of such a nature that, ignoring financial gain, it must reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience (whether by verbal or other
(3) The following are not sexual entertainment venues for the purposes of this Schedule—
(a) sex cinemas and sex shops;
(b) premises at which the provision of relevant entertainment as mentioned in sub-paragraph (1) is such that, at the time in question and including any relevant entertainment which is being so provided at that time—
(i) there have not been more than eleven occasions on which relevant entertainment has been so provided which fall (wholly or partly) within the period of 12 months ending with that time;
(ii) no such occasion has lasted for more than 24 hours; and
(iii) no such occasion has begun within the period of one month beginning with the end of any previous occasion on which relevant entertainment has been so provided (whether or not that previous occasion falls within the
12 month period mentioned in sub-paragraph (i));
(c) premises specified or described in an order made by the relevant national authority.
Further definitions are included:
audience includes an audience of one
display of nudity means—
(a) in the case of a woman, exposure of her nipples, pubic area, genitals or anus; and
(b) in the case of a man, exposure of his pubic area, genitals or anus
Sexual Entertainment Venues are then liable to local authority licensing and of course fees. It is nominally optional for local authorities to adopt the new licensing regime.
In addition, councils have been given the arbitrary power to refuse licenses with the new justification:
that the number of sex establishments, or of sex establishments of a particular kind, in the relevant locality at the time the application is determined is equal to or exceeds the number which the authority consider is
appropriate for that locality .
Also objectors are no longer restricted to those who just live or work near the proposed venue.
However, the new regime still does not take into account objections on moral grounds.