No right to run lap-dancing clubs
They may be unlikely human rights campaigners, but the owners of lap-dancing clubs have threatened to use the Human Rights Act, and if need be to go to the European court of human rights in Strasbourg, to protect their business.
Until now, the law has treated lap-dancing clubs like ordinary bars, subject to ordinary licensing law. But from this month, when the Policing and Crime Act 2009 amended local government legislation in England comes into force, councils can assume new regulatory powers over “sexual entertainment venues”, as the law now calls lap-dancing and pole-dancing clubs. Under the new rules, councils can force clubs to apply for a new sex establishment licence every year, just like a sex shop. The amended law will give councils more scope to consider residents’ objections to lap-dancing clubs and to refuse a licence if a club would be inappropriate in a locality. Crucially, it allows councils to set a limit on the number of sexual entertainment venues they want in their area. It’s these changes – changes that represent a victory for feminist campaigners at the Fawcett Society and Object – that have club owners worried.
It’s true that the ordinary licence clubs already have amounts to “possessions” protected by article 1 of protocol 1 to the European convention on human rights. But article 1 of protocol 1 permits the state to control the use of property, so long as the law strikes a fair balance between the rights of club owners on the one hand, and the public interest on the other. The new law plainly does strike a fair balance, and club owners have little real chance of resistance. If they try, they’ll find the Human Rights Act doesn’t protect property quite as strongly as they hope. My sympathy will, in any case, be with the councils they challenge. But as long as councils act reasonably my money, too, will be on them to see off human rights claims.
This issue illustrates, though, how human rights – and particularly article 1 of protocol 1 – are used by commercial interests to fight regulation they do not welcome. What’s so useful about them as a lobbying tool is that they combine a legal threat with a claim to moral high ground. Object is understandably concerned that lap-dancing clubs dare invoke rights: it seems wrong that they should provide a rhetorical shield for those whose success represents, in many eyes, movement away from humanity’s sunlit uplands. But our favoured causes have no exclusive title to the Human Rights Act. As Afua Hirsch has rightly written here, everyone has rights. And businesses certainly lay claim to them.
One of the important early cases under the Human Rights Act concerned the article 1 protocol 1 rights of a loan company. More recently, the court of appeal rejected an article 1 protocol 1 challenge by Northern Rock shareholders, including Jon Wood’s SRM Global Master Fund to the government’s compensation scheme. It’s difficult to argue that firms should never enjoy convention rights – if they didn’t, media organisations like the Guardian would be unable to enforce freedom of expression, in all our interests. And, to be fair, the Northern Rock appeal involved small shareholders as well as offshore financial institutions. But there is a real absurdity in the idea that a hedge fund based in the Cayman Islands can claim its human rights have been breached.
Those who defend the HRA in its current form have simply to accept it can be invoked, even if unsuccessfully, in ways they find unattractive, while all of us endure businesses’ often empty legal rhetoric. More importantly, those in power both locally and nationally must not buckle in the face of self-interested claims to rights. They must defeat them.
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