• In the case of Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, it was found that where the decision-making body denies any application under the Human Rights Act, it does not need to show that a proportionality inquiry was made to prove that the measures they undertook were proportionate to the law.

Facts of Belfast City Council v Miss Behavin Ltd [2007] UKHL 19

  • Belfast City Council were in charge of granting licences and did not licence sex shops
  • Following Miss Behavin Ltd being therefore denied an application by the council, they sought a reviewal of the council’s decision
  • Their basis for reviewal being that the council infringed Article 10 of the European Convention on Human Rights
  • Northern Ireland’s Court of Appeal held that the council failed to consider the Article 10 right, therefore violating Miss Behavin Ltd’s rights by the way they arrived at their conclusion of not granting a licence

Issues in Belfast City Council v Miss Behavin Ltd [2007] UKHL 19

  • Were the administrative decision-makers wrong in their denial of granting a licence, agreeing with the Court of Appeal?

Held by the House of Lords

  • Appeal allowed, the Council’s refusal was not a denial nor infringement of Miss Behavin Ltd’s rights, and they were lawfully allowed to restrict the company’s freedom of expression.

Lord Hoffman

Having considered the facts at hand, Lord Hoffman believed

  • “If art 10 and art 1 of Protocol 1 are engaged at all, they operate at a very low level. The right to vend pornography is not the most important right of free expression in a democratic society and the licensing system does not prohibit anyone from exercising it. It only prevents him from using unlicensed premises for that purpose.” [16]

Lord Hoffman noted that there is a wide scope of discretion for local authorities regarding sex shops

  • “the Strasbourg court has always accorded a wide margin of appreciation to member States, which in terms of the domestic constitution translates into the broad power of judgment entrusted to local authorities by the legislature. If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights. That was not the case here and I would therefore allow the appeal and dismiss the application for judicial review.” [16]

Baroness Hale

The role of the courts is not to consider whether the decision-maker took the human rights of applicants properly into account, it is concerned with infringement

  • “The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the Claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account. If it were otherwise, every policy decision taken before the Human Rights Act 1998 came into force but which engaged a convention right would be open to challenge, no matter how obviously compliant with the right in question it was.” [31]