Licensing of sexual entertainment venues: consultation

Annex A: Draft Guidance on the Provisions for Licensing of Sexual Entertainment Venues and Changes to Licensing of Theatres

Air Weapons and Licensing (Scotland) Act 2015

Guidance on the Provisions for Licensing of Sexual Entertainment Venues and Changes to Licensing of Theatres

Introduction

The key aims of civic licensing are the preservation of public safety and order and the prevention of crime. A specific licensing regime for sexual entertainment venues will allow local authorities to consider local circumstances in setting the number of venues able to operate within their areas (this could be nil) and to exercise appropriate control and regulation of these venues. A published sexual entertainment policy statement will provide local communities with a clear indication of the local authority's policy and examples of licensing conditions, along with enforcement details. The policy should also demonstrate how the local authority intends to help protect the safety and wellbeing of performers, customers and the wider public.

Legislation

1. The Air Weapons and Licensing (Scotland) Act 2015 ^[1] (the 2015 Act) received Royal Assent on 4 August 2015. The provisions of the Act which relate to the licensing of sexual entertainment venues ( SEV) come into force on [ Date to be agreed]. However this is not a mandatory licensing regime and it will be for local authorities to determine whether they wish to licence SEV, whether to limit their numbers and to determine individual licence applications. When doing so local authorities will need to consider the implications, opportunities and risks of their decisions. We would envisage that SEV licences may be required in some areas from [ Date to be agreed].

2. Section 76 of the 2015 Act inserts sections 45A, 45B and 45C into Part III of the Civic Government (Scotland) Act 1982 ^[2] ( the 1982 Act). These provisions establish a specific licensing regime for the regulation of SEV and allow for greater local control over the provision of such venues. Although licensing of SEV follows a similar pattern to that covered by Part I, Part II and Schedule 1 of the 1982 Act, local authorities may wish to note that these provisions have no application to Part III licences which are solely governed by Schedule 2 of the Act.

3. While this guidance is primarily in respect of the SEV licensing regime, it also includes details at paragraphs 87-88 of the repeal of the existing mandatory licensing regime for theatrical performances under section 12 of the Theatre Act 1968 and the ability of local authorities to licence theatres under the more flexible public entertainment licence requirements contained within the 1982 Act. To allay concerns raised, it is worth emphasising that theatrical performances will not fall under the provisions for SEV.

4. Information in respect of both SEV and the theatre provisions is provided at: paragraph 90 on commencement; at paragraphs 93-96 on transitional provisions; and at paragraphs 101-102 on the consequential changes required to The Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007 as a result of the creation of a SEV licensing regime and the changes to theatre licensing.

5. This guidance also makes reference to the Licensing (Scotland) Act 2005 (the 2005 Act ^[3] ), which provides a licensing regime for the sale of alcohol. The 1982 Act, and the 2005 Act provide for a variety of different licences, and it is possible that the same activity may require more than one licence. Care should therefore be taken to ensure that the requirement to obtain a licence and any exemptions from the requirement to obtain a licence are carefully considered.

6. The 1982 Act sets out that civic licensing decisions are the responsibility of the licensing authority, a committee made up of locally elected councillors. The 2005 Act provides that liquor licensing decisions are the responsibility of the local Licensing Board. These terms are used throughout this guidance. In practice the relevant committees may be known by different names, or different licensing regimes may be covered by the same local authority committee. Where different committees are involved in the licensing of the same business, then it can be useful to co-ordinate in relation to the setting of licence conditions etc.

7. Where a local authority opts to licence SEV within its area, the provisions at section 45A of the 1982 Act require a licence for premises operated as SEV where the sexual entertainment is performed live, is for the direct or indirect financial benefit of the organiser and is for the sole or principal purpose of sexual stimulation of members of the audience. However, premises where sexual entertainment is provided on no more than 4 occasions in a twelve month period are not to be treated as SEV. The Licensing of sexual entertainment venues: interpretation section at paragraphs 80-86 of this guidance provides additional definitions and further information.

8. The following link shows the passage of the Air Weapons and Licensing (Scotland) Bill through the Scottish Parliament, and includes further documentation that may be of interest including the Explanatory Notes and Policy memorandum: http://www.scottish.parliament.uk/parliamentarybusiness/Bills/76383.aspx .

The Guidance

9. Section 45B(7) of the 1982 Act requires that, in carrying out its functions, a local authority must have regard to guidance issued by Ministers. This non-statutory guidance is intended to assist local authorities, but other parties such as the Police, venue operators, relevant organisations and performers may also find it useful.

10. The guidance should be read in conjunction with the relevant legislation, particularly Part III and Schedule 2 of the 1982 Act and the relevant accompanying documents for the Air Weapons and Licensing (Scotland) Act 2015. This guidance however should not be seen as a replacement for independent legal advice.

Background

11. On 24 March 2005, previous Scottish Ministers set up a Working Group on Adult Entertainment to review the scope and impact of adult entertainment activity and make recommendations on the way forward. This followed concerns expressed about the lack of controls on adult entertainment activity. The Group ^[4] made a number of recommendations aimed at improving standards in the industry, ensuring the safety of performers and customers, regulating the impact on the locality, improving local accountability and control and ensuring that there was no inadvertent impact on artistic freedoms.

12. At that time, it was felt that, as SEV also sold alcohol and therefore required alcohol licences, it was best left to local licensing boards to regulate adult entertainment via the existing licensing regime for alcohol.

13. In 2010 Sandra White MSP introduced amendments to provide for a specific system of licensing for sexual entertainment which were considered by the Scottish Parliament as part of its scrutiny of the Criminal Justice and Licensing Bill at Stages 2 and 3. The proposed provisions broadly mirrored those that had been introduced in England and Wales in section 27 of the Policing and Crime Act 2009. While the Scottish Government supported the proposals, Parliament rejected them due to concerns about the effect of operating a dual licensing system and concerns about the lack of opportunity to fully consider the proposals.

14. Since then, the court judgment in BrightCrew Limited v City of Glasgow Licensing Board [2011] CSIH 46XA86/10 ^[5] called into question the ability of Licensing Boards to set conditions that stray beyond the sale of alcohol. As a result, Scottish Ministers considered that a specific licensing regime for SEV was the best solution for future regulation of the industry and to remove uncertainty around attempting to regulate under alcohol licensing matters that go beyond the remit of that regime.

15. A consultation was published in June 2013 ^[6] (the consultation) inviting views on the establishment of a licensing regime based on the draft provisions that Ms White had proposed in 2010. Section 76 of the 2015 Act amends the 1982 Act to provide for this.

Relationship with other Strategies

16. In response to the consultation there was wide support for the principle of a new licensing regime including from local authorities, Police, violence against woman and gender groups.

17. However, some concerns were raised that licensing SEV encouraged unhealthy attitudes to women and therefore damaged society as a whole.

18. The Scottish Government accepts the freedom of adults to engage in legal activities and employment. However, it will continue to promote, through all relevant means, gender equality and actions that tackle out-dated attitudes that denigrate or objectify particular groups or individuals.

19. Equally Safe: Scotland's strategy for preventing and eradicating violence against women and girls ^[7] was first published in 2014 and updated in 2016. It sets out a definition of violence against women and girls which includes 'commercial sexual exploitation, including prostitution, lap dancing, stripping, pornography and human trafficking'.

20. Whilst recognising the conflict between this definition and the licensing of sexual entertainment venues this guidance will help to ensure that such activities take place in safe and regulated environments. When deciding whether to licence, and whether to limit, SEV in their area local authorities will need to consider the interaction with their own local policies and strategies, as well as the legal implications to minimise the risk of legal challenge.

21. Equally Safe's aim is to work collaboratively with key partners across all sectors to prevent and eradicate all forms of violence against women and girls and the attitudes which perpetuate them. Its priorities are: achieving gender equality; intervening early and effectively to prevent violence; and maximising the safety and wellbeing of women, children and young people.

22. The Trafficking and Exploitation Strategy ^[8] , required under section 35 of the Human Trafficking and Exploitation (Scotland) Act 2015 was published on 30 May 2017. It sets out the Scottish Government's strategy to work with partners to make Scotland a more hostile place for human trafficking. The aims of the strategy are to identify victims and support them to safety and recovery; identify perpetrators and disrupt their activity; and address the conditions that foster trafficking and exploitation.

23. In developing the licensing regime care has therefore been taken to balance individual freedom of choice with the right of local authorities to exercise appropriate control and regulation of SEV that operate within their areas.

24. Ministers consider that local authorities are best placed to reflect the views of the communities they serve and to determine whether sexual entertainment establishments should be licensed within their areas and if so, under what conditions.

25. A local authority licensing SEV will have to publish a SEV policy statement, developed in consultation with relevant interest groups (including violence against women partnerships) which will provide local communities with a clear indication of the local authority's policy. Where a SEV is approved, licensing conditions, along with enforcement, will help reduce the risk of criminality such as prostitution and human trafficking; and help protect the safety and wellbeing of performers, customers and the wider public. The community should, in turn, benefit from a safe, regulated environment.

26. This is a complex area and local authorities will have to consider the local circumstances and balance the legal obligations of legislation including, but not limited to, the EU Services Directive, the Regulatory Reform (Scotland) Act 2015 with the needs of their communities to mitigate the risks of legal challenge and any rights SEV operators may have particularly under Article 1, Protocol 1 of the European Convention of Human Rights (entitles every person to the peaceful enjoyment of their possessions) and Article 10 (freedom of expression).

Licensing of sexual entertainment venues

27. Section 76 of the 2015 Act introduces a licensing regime for SEV. It achieves that by amending the existing licensing scheme for sex shops provided for in Part III and Schedule 2 of the 1982 Act so that the provisions, with necessary modification, also apply to SEV. It is however not mandatory for a local authority to licence SEV.

28. When deciding whether to licence SEV, local authorities should consider the legal complexities it introduces and ensure they are able to mitigate the risks of legal challenge to an acceptable level.

Local Authority Resolution

29. Where a local authority decides to licence SEV, section 45B of the 1982 Act, requires the local authority to pass a resolution in order for SEV licensing to have effect in their area.

30. In considering whether to pass a resolution a local authority should consider whether they will wish to control SEVs either now or in the future. If there is no resolution in place, then no licence is required to operate an SEV. It may therefore be appropriate to determine a resolution even where there are no current SEV in operation if the local authority considers that it is likely to be thought that it would be inappropriate for any SEV to operate in its area in the future. Otherwise it will be possible for a SEV to operate there unregulated until a SEV licensing regime is put in place.

31. In considering whether to pass a resolution to licence SEV, local authorities may wish to look carefully at their localities and consider a range of issues such as:

• whether there are any sexual entertainment venues already operating
• the location of schools
• the location of places of worship
• the location of heavily residential areas
• whether there have been incidents involving anti-social behaviour, sexual assaults or more minor harassment reported in any particular area
• whether there have been incidents of human trafficking or exploitation locally.

32. Local authorities have extensive experience of engaging with local people and will know what works best in their individual areas and may wish, as a matter of good practice, to seek the views of local people and businesses prior to deciding whether to pass a resolution. In doing so, local authorities may wish to make any relevant information available to local people in order to inform their understanding. Local authorities may also wish to engage with known SEV as soon as a decision has been made, to ensure that they are aware of what action they will need to take, and to seek input from the local Police Scotland human trafficking champion or the Human Trafficking Unit at Gartcosh.

33. In considering whether to pass a resolution to licence SEV, local authorities must also have cognisance of other relevant legislation such as the EU Services Directive, the Regulatory Reform (Scotland) Act 2015 and any rights SEV operators may have particularly under Article 1, Protocol 1 of the European Convention of Human Rights (entitles every person to the peaceful enjoyment of their possessions) and Article 10 (freedom of expression). Local authorities should consider whether the decision is proportionate and justifiable.

34. If licensing SEV, a local authority must determine, from time to time, the number of SEV that they consider appropriate for their area and each relevant locality. Nil may be considered the appropriate number. The determination should be publicised. Further guidance on what a local authority may wish to consider in determining numbers and localities is provided below in relation to developing the policy statement.

Specified Day

35. Where a local authority passes a resolution, it must specify a date from when it is to take effect in their area. This must be at least one year from the date the resolution is passed. The local authority must also publish notice that they have passed a resolution not less than 28 days prior to the date the resolution is to take effect. The notice must state the general effect of the licensing procedure and provisions at Schedule 2 of the 1982 Act, as modified for SEV, and be published either electronically or in a local newspaper.

Statements of policy in relation to sexual entertainment venues

36. Section 45C of the 1982 Act requires that where a local authority has passed a resolution under section 45B(1) that a licensing regime for SEV will have effect in their area, they will then be required to prepare and publish a sexual entertainment venue policy statement. The statement of policy should set out and justify the position of the local authority with regards to licensing SEV and should support local authorities should they face any legal challenges.

Content

37. The policy statement should include details of the impact a local authority considers the licensing of SEV will have in its area. Section 45C(3) of the 1982 Act states:

"In preparing a SEV policy statement, a local authority must—

(a) consider the impact of the licensing of SEV in their area, having regard, in particular, to how it will affect the objectives of—

(i) preventing public nuisance, crime and disorder,

(ii) securing public safety,

(iii) protecting children and young people from harm,

(iv) reducing violence against women, and

(b) consult such persons or bodies as they consider appropriate."

38. For the purposes of the section, "children" are defined as persons under the age of 16 and "young people" as persons aged 16 or 17.

39. Policy statements should be published at the same time and in the same manner as the notice of resolution is published i.e. it should be published not less than 28 days prior to the date the resolution is to take effect, either electronically or in a local newspaper.

40. The policy statement should provide local communities with a clear indication of the local authority's policy and must be consistent with the licensing objectives and procedures set out in the 1982 Act as amended.

41. The statement might include information on where the local authority is likely to consider to be appropriate or inappropriate locations for SEV and indicate how many SEV are considered to be appropriate for a particular locality in its area along with explaining the reasons behind this.

42. In developing the statement, local authorities may also wish to take account of whether any sexual entertainment venues are already operating in its area under the existing regime for alcohol licensing and, if so, whether they wish to continue to licence the same number of venues as are currently operating.

43. The local authority may wish to reflect on whether reducing the number of venues, or setting the number at zero, in their area will have a disproportionate effect on business and on whether they may leave themselves open to legal challenges e.g. under Article 1, Protocol 1(entitles every person to the peaceful enjoyment of their possessions) of the European Convention of Human Rights.

44. Where there are currently no sexual entertainment venues operating, a local authority may wish to consider if there may be benefit in making a resolution to give effect to the licensing regime even where it considers that the number should be set at zero. In setting the number at zero, a local authority should be able to demonstrate proportionality by evidencing that the competing interests of individuals alongside those of the community had been fairly considered and appropriately balanced.

45. In developing the policy statement, we consider it best practice for local authorities to consult with persons with an interest and this should include organisations such as violence against women partnerships, child protection committees and community councils.

46. In exercising any functions in relation to the licensing of SEV, the local authority is required to have regard to their SEV licensing policy statement. It is also required, from time to time, to review the policy statement, revise it as appropriate and publish the revised statement. We suggest that it may be best practice to align the review of both the resolution and the policy statement. However it will be for individual local authorities to determine the timeframe for undertaking the reviews required.

Licensing Conditions

47. Under paragraph 9 of Schedule 2 to the 1982 Act local authorities have a power to impose reasonable licence conditions. In doing this local authorities need to be flexible in responding to each application and in some cases additional or more tailored conditions reflecting local circumstances may be appropriate.

48. Conditions are specific requirements that the licence holder must comply with, otherwise the licence could be refused or revoked. Paragraph 19(1)(c) of Schedule 2 states that a licence holder who, without reasonable excuse, knowingly contravenes or permits the contravention of a specified condition will be guilty of an offence.

49. The local authority can attach standard conditions for all licences granted for SEV, they may also impose individual conditions to licences.

50. By way of example, such licence conditions could regulate:

• the display of advertisements on or connected to the venue.
• the days and times when the premises may be used as a SEV.
• the visibility of the interior of the SEV to passers by
• the number of persons to be admitted to the premises.

51. The local authority should give careful consideration as to whether the condition proposed is necessary. The local authority should also consider whether, in all the circumstances, the condition is reasonable and proportionate and therefore not open to challenge.

52. Any condition attached to the licence must be clear, so that the licence holder is aware of his obligation to comply.

53. Part of the local authority's role is to ensure improved working conditions and a safer environment for the women who work in SEV. They may wish to encourage operators to actively identify potential victims of human trafficking in their recruitment procedures and to work with agencies such as the Trafficking Awareness Raising Alliance ( TARA) to combat the trafficking of individuals and families.

54. In terms of how a premises licensed as a SEV should be run, local authorities may wish to consider adopting some or all of the following non-exhaustive list of suggestions and develop them as model conditions within their Policy Statement:

• list of full names, dates of birth, nationality and contact details (address or telephone number) for all performers to be available on the premises for immediate production if requested by Police or local authority officers.
• ensure immigration status is in order and performers have not been the victims of human trafficking
• employment of security guards
• use and storage of CCTV
• provision of hygienic changing facilities and a toilet with access to hot water exclusively for the use of the performers
• set break times for performers
• the provision of a break room exclusively for the use of the performers
• performers to be escorted by security to nominated taxi or to their car at end of shift
• performers to remain clothed outwith performance area
• no physical contact between performers and customers
• rules to be displayed at appropriate locations within the venue of customer conduct that is deemed acceptable e.g. customers to remain fully clothed at all times
• performers not to accept offer from customer of payment in return for sexual favours
• performers not to accept any form of contact details from customers
• performers not to engage in any unlawful activity within SEV
• no photographs or video recordings to be taken.

55. It should be borne in mind that it is extremely likely that SEV will also require to have a premises licence under Part 3 of the 2005 Act and care will be required to ensure that any SEV conditions are attached to the SEV licence and that they do not contradict the conditions applied to the alcohol licence. In the event that the SEV does not also require an alcohol licence, local authorities may wish to consider whether any of the conditions attached to such licences would be appropriate to that particular SEV.

Applications

56. The local authority resolution will specify a date from which the SEV licensing regime is to take effect in its area. Under paragraph 25(3) of Schedule 2 of the 1982 Act a local authority cannot consider any application for a SEV licence prior to the date specified in the resolution and cannot grant any licence until it has considered all applications received.

57. Local authorities will therefore wish to consider developing new application forms specifically in respect of SEV licences. Authorities will also have to determine when these forms should be made available to operators / prospective operators. It may also be appropriate to intimate in the resolution when applications will be considered by the local authority.

58. Paragraph 25 of Schedule 2 also provides that where a SEV is trading in the area before the resolution has been published and before the specified day of effect has applied for a SEV licence under Schedule 2, then they may continue trading until the application is considered. If the application is refused they may continue to trade until the timescale for an appeal under paragraph 24 has lapsed or the appeal has been determined or abandoned.

59. We suggest that in considering an application for a SEV licence, with the view to reaching an evidence based decision on whether it should be granted, local authorities will wish to look carefully at the proposed location and take account of

• the existing character and function of the area in which it will be located
• whether there are any schools near the vicinity of the SEV
• whether there any places of worship in that vicinity
• whether there are other relevant businesses or charities operating in the area e.g. homelessness shelters, supported accommodation, recovery units etc.
• whether the SEV is close to heavily residential areas
• whether there have been incidents involving anti-social behaviour, sexual assaults or more minor harassment reported in that area
• the views of residents and other relevant interested persons
• input from the local Police Scotland human trafficking champion or the Human Trafficking Unit at Gartcosh.

60. It is important to note that a SEV licence will be required for premises where sexual entertainment is provided on more than 4 occasions in a twelve month period even where that entertainment is booked by the person hiring the venue.

Consideration

61. Local authorities will follow the established procedure for considering applications laid out at Schedule 2 of the 1982 Act. The procedure is applicable to licensing sex shops and has been modified to apply to SEV. Paragraph 9(3) sets out a list of persons to whom a licence may not be granted and paragraph 9(5) lists grounds on which a local authority may refuse an application for the granting or renewal of a licence. Each licence application should be fully considered on its own merits. However note, under paragraph 9(5)(c), where the number of venues in the local authority's area or relevant locality at the time the application is made is equal to or exceeds the number which the local authority consider is appropriate for their area or that locality the local authority should refuse the application without further consideration.

62. The provisions in relation to making an application for a licence or the renewal of a licence are detailed at paragraph 6 of Schedule 2. In considering an application, the local authority will wish to satisfy itself that the applicant is not an unsuitable person to hold a licence by reason of having been convicted of an offence or for any other reason.

63. The local authority can at any time decide to vary a licence on any grounds it thinks fit or revoke a licence in line with the provisions set out at paragraph 13 of Schedule 2.

64. A decision not to grant a licence or to revoke a licence may be subject to appeal. An appeal would be to a Sheriff in the first instance and could be on the grounds that the authority erred in law, based their decision on an incorrect material fact, acted contrary to natural justice or exercised their discretion unreasonably.

65. Any appeal in relation to a SEV licence must be made within 28 days of the date of the decision appealed against.

66. Under paragraph 12(2)(b) of Schedule 2 a local authority may grant a SEV licence for one year or such other period that it deems appropriate.

Notification

67. Applicants will require to advertise their applications for a licence in a local newspaper specified by the local authority and for a notice to be displayed on or near the relevant premises. The legislation imposes a further duty at paragraph 7(3C) of Schedule 2 requiring each applicant for a licence to operate a SEV to send a copy of their application to such persons or bodies as have been determined by the local authority within 7 days of making the application and to certify to the local authority that they have done so. There is also a new obligation on local authorities at paragraph 7(3D), requiring them to determine which persons and bodies are to receive copies of applications and to publicise that list as they consider appropriate.

List of appropriate persons

68. In relation to notification of a SEV licence application, the Cabinet Secretary for Justice stated during Stage 3 consideration of the legislation:

"Although the current process already allows for robust notification procedures, with requirements for both newspaper advertising and notices to be publicly displayed, there are advantages in requiring specific notification to particular bodies that will have an interest in the licensing of sexual entertainment venues. There is a practical advantage in ensuring important stakeholders, including violence against women partnerships and community councils are notified of applications early, so that they have sufficient time to consider applications and to make such representations to the authority as they consider appropriate. There is also an advantage in that it will send a very clear message that groups identified as being appropriate to receive copies of the application, including violence against women partnerships and community groups, are at the heart of the licensing process."

69. In line with this, we suggest that it is essential to ensure that those with an interest are notified as early as possible and that particular organisations such as violence against women partnerships and community councils should be considered important stakeholders in the licensing process. They should therefore be included on the published local authority list of those who are to receive copies of applications.

70. Local authorities may also wish to consider including on the list businesses, schools, places of worship, child protection committees, residents who are in the vicinity of the proposed SEV along with anyone else they consider appropriate.

ECHR Issues

71. When taking a decision to refuse an application local authorities should take account of any rights SEV operators may have, particularly under Article 1, Protocol 1 of the European Convention of Human Rights (entitles every person to the peaceful enjoyment of their possessions) and Article 10 ( freedom of expression). Local authorities may wish to consider whether there is any interference with the applicant's human rights. And if so is it necessary and proportionate for the prevention of disorder or crime, the protection of health or the protection of the rights and freedom of others and whether the interference can be justified in the general public interest.

72. In implementing the SEV legislative provisions local authorities will wish to ensure that they do so in compliance with the Convention rights and that they put in place flexible policies which take account of individual circumstances.

Fees

73. Paragraph 18 of Schedule 2 provides that a local authority should charge a reasonable fee which is sufficient to meet the expenses incurred by the authority in exercising its functions under the Schedule. In setting fees, local authorities will wish to have regard to the EU Services Directive.

Enforcement

74. Offences and sanctions which relate to SEV licensing fall wholly under Schedule 2 of the 1982 Act and are set out in paragraph 19 of Schedule 2. Local authorities will wish to be aware that these provisions only apply where a resolution to licence SEV has been made.

75. The powers to enter and inspect and to enter and search licensed SEV are set out at paragraphs 20 and 21 of Schedule 2. These are similar to the provisions relating to Part II licences.

Conclusion

76. The 1982 Act makes clear that any decision made by the local authority, when considering applications for SEV licences, should be reasonable. This applies to fees, conditions which may be added to the licence, and to the time taken to consider the application.

77. The local authority should consider the facts of individual licence applications, and make decisions which are based on local priorities and circumstances.

78. The local authority should, where possible, ensure that there is consistency in these decisions, and in the conditions which may be attached to any licence granted.

Licensing of sexual entertainment venues: interpretation

79. Part III of the 1982 Act currently allows local authorities to control the number and location of sex shops in their area and Schedule 2 contains the detailed licensing procedures and provisions for sex shops. Section 76 of the 2015 Act creates a new licensing regime for SEV. It inserts sections 45A - 45C into Part III of the 1982 Act; modifies Schedule 2 so that it applies when a local authority resolves to licence SEV; and amends the title of Part III to "Control of sex shops and sexual entertainment venues".

Definitions

80. Section 76(3) inserts an interpretation section, which underpins the SEV licensing regime, into the 1982 Act at Part III, section 45A. The relevant definitions are:

"(2) "Sexual entertainment venue" means any premises at which sexual entertainment is provided before a live audience for (or with a view to) the financial gain of the organiser.

(3) For the purposes of that definition—

"audience" includes an audience of one,

"financial gain" includes financial gain arising directly or indirectly from the provision of the sexual entertainment,

"organiser", in relation to the provision of sexual entertainment in premises, means—

(a) the person ("A") who is responsible for—

(i) the management of the premises, or

(ii) the organisation or management of the sexual entertainment, or

(b) where A exercises that responsibility on behalf of another person (whether by virtue of a contract of employment or otherwise), that other person,

"premises" includes any vehicle, vessel or stall but does not include any

private dwelling to which the public is not admitted,

"sexual 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 means).

(4) For the purposes of the definition of "sexual entertainment", "display of nudity" means—

(a) in the case of a woman, the showing of (to any extent and by any means) her nipples, pubic area, genitals or anus,

(b) in the case of a man, the showing of (to any extent and by any means) his pubic area, genitals or anus."

81. In summary, the provisions at section 45A of the 1982 Act require a licence for premises operated as SEV where the sexual entertainment is performed live, is for the direct or indirect financial benefit of the organiser and is for the sole or principal purpose of sexual stimulation of members of the audience.

Exemptions

82. However, premises where sexual entertainment is provided on no more than 4 occasions in a twelve month period are not to be treated as SEV. This exemption is to avoid drawing into the SEV licensing regime venues where the main purpose is clearly not to provide regular sexual entertainment e.g. venues which have the very odd stag or hen party providing such entertainment. Section 45A(10) specifies how occasional use is to be calculated:

"(a) each continuous period during which sexual entertainment is provided on the premises is to be treated as a separate occasion, and

(b) where the period during which sexual entertainment is provided on the premises exceeds 24 hours, each period of 24 hours (and any part of a period of 24 hours) is to be treated as a separate occasion."

83. It is important to note that a SEV licence will be required where such entertainment occurs on more than 4 occasions in a twelve month period even where that entertainment is booked by the person hiring the venue. It is also important that any premises where sexual entertainment may be performed are properly supervised, as breach of the above limit without a licence is an offence.

Sex shops

84. Section 45A specifically identifies sex shops as not being sexual entertainment venues and provides a power to allow Ministers to specify other premises which do not fall into the category of sexual entertainment venues. A further power is provided so that Ministers can specify descriptions of performances or displays of nudity that are not to be treated as sexual entertainment for the purposes of the legislation.

Under 18s

85. Paragraph 19(1) of Schedule 2 of the 1982 Act prevents anyone under the age of 18 being employed in a SEV. Section 45B(6)(g) of the 1982 Act modifies paragraph 19(1)(e) of Schedule 2 in respect of SEV to make it an offence for a licence holder or their agents to knowingly permit a person under the age of 18 entry to the sexual entertainment venue at a time when sexual entertainment is being provided, or at any other time without reasonable excuse. An example of a reasonable excuse might be where a plumber's mate is called upon to fix an emergency leak.

Public entertainment

86. Section 41 of the 1982 Act enables a licensing authority to direct that a public entertainment licence is necessary for certain types of activity. Section 41(2) of the 1982 Act provides that a "place of public entertainment" is any place where members of the public are admitted or may use any facilities for the purposes of entertainment or recreation. Section 76(2) of the 2015 Act amends section 41(2) of the 1982 Act to exclude a sexual entertainment venue from being licensed under a public entertainment licence.

Licensing of Theatres

Repeal of existing mandatory licensing provisions

87. The provisions at section 74 of the 2015 Act repeal the existing mandatory requirement for theatrical performances to be licensed under the Theatre Act 1968 ^[9] (the 1968 Act) and supporting provisions in the 1968 Act that allow for powers of entry and inspection. The section also removes the exemption for premises licensed under the 1968 Act from the 1982 Act. This means that local authorities will be able to licence theatres under the public entertainment licence requirements contained in section 41 of the 1982 Act. Section 74 also inserts an equivalent of the anti-censorship provisions from the 1968 Act into the 1982 Act, so that licensing authorities will not be able to censor theatrical performances under the public entertainment licensing regime within the 1982 Act.

Local Authority resolution

88. Following the repeal of the theatre licensing provisions within the 1968 Act, local authorities may wish to consider making a public entertainment licensing resolution under section 9 of the 1982 Act to licence theatres. This requires local consultation, publicity and a 9 month period of notice before having effect. Local authorities are familiar with setting a resolution to bring activities within the scope of public entertainment licensing as the public entertainment licensing regime is currently used for licensing activities such as concerts, funfairs, variety shows etc. Having the local authority set out the scope of the public entertainment regime allows for greater flexibility and local authorities will, for example, be able to exclude premises offering plays to very small audiences from the licensing requirement where they consider that appropriate and proportionate.

Commencement of licensing of theatres and sexual entertainment venues

89. The Air Weapons and Licensing (Scotland) Act 2015 (Commencement No. 1) Order brought section 76(1) and 76(3) into force on 1 December 2015 for the purpose of inserting section 45A into the 1982 Act, but only for the purposes of making orders under section 45A(7)(b) and (11) of that Act. These provisions enable subordinate legislation to be made under the 1982 Act.

90. The provisions at section 74 and the outstanding provisions at section 76 of the 2015 Act are to be fully commenced on [ Date to be agreed] by the Air Weapons and Licensing (Scotland) Act 2015 (Commencement No.XX and Saving Provisions) Order 2018.

91. In commencing the primary legislation, careful consideration was given as to how and when any existing primary legislation either removed or amended should be 'switched off' and the new provisions take effect and also as to whether the legislation being commenced had any impact on existing secondary legislation which required it to be amended.

92. The transitional and consequential amendments to existing legislation as a result of the provisions at section 74 and 76 of the 2015 Act are detailed below.

Transitional provisions

Section 74 - Theatres

93. To ensure a smooth transition from the mandatory theatre licensing regime under the 1968 Act to the optional public entertainment licensing regime within the 1982 Act the latest expiry date for a licence granted under the 1968 provisions is [ Date to be agreed] This is intended to allow local authorities sufficient time to consider whether to licence theatres under the 1982 Act and for any resolution to take effect before the licensing regime under the 1968 Act ends.

94. This means that licences granted prior to the commencement of section 74 of the 2015 Act will be able to continue for their natural duration and that new applications and renewal requests can be considered and granted under the 1968 Act until either a local authority resolution comes into effect or until [ Date to be agreed] whichever comes first.

Section 76 – SEV

95. Section 45B(1) - (3) of the 1982 Act provides:

"(1) A local authority may resolve that Schedule 2 (as modified for the purposes of this section) is to have effect in their area in relation to SEV.

(2) If a local authority passes a resolution under subsection (1), Schedule 2 (as so modified) has effect in their area from the day specified in the resolution.

(3) The day mentioned in subsection (2) must not be before the expiry of the period of one year beginning with the day on which the resolution is passed."

96. This means that existing SEV will not be allowed to continue trading indefinitely. Following a local authority resolution being passed to licence SEV, they will be able to trade for not less than a year under existing arrangements and then will have to submit an application for a licence for a sexual entertainment venue. There should be no assumption that an existing establishment should be allowed to continue under the new regime even when a premises licence under the Part 3 of the 2005 Act is in place. Each licence application should be fully considered on its own merits.

97. Local authorities may wish to be aware of court judgements in:

• Thompson R v Oxford City Council [2013] EWHC 1819 (admin) (28 June 2013) ^[10] and
• Thompson R v Oxford City Council & Anor [2014] EWCA Civ 94 (11 February 2014) ^[11]

98. The 'Oxford' cases stressed that the grant of a licence should not be viewed as a grant for eternity and that a new licensing committee can take a different view of the same facts.

Consequential Amendments in relation to liquor – The Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007

99. Following a review of secondary legislation we noted that amendments were required to secondary legislation related to liquor licensing, namely The Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007 ^[12] (the Regulations). These liquor regulations include a definition of adult entertainment and a reference to theatre licensing.

100. These Regulations specify conditions which must be imposed by a Licensing Board on the granting of a liquor premises licence where the operating plan specifies that the premises will, on any occasion, be open for a continuous period beginning on one day and ending after 1am on the following day.

101. Local authorities may wish to be aware that, as sexual entertainment venues now fall to be regulated under a separate specific licensing scheme it is no longer necessary to provide a definition of "adult entertainment" in these liquor Regulations. Similarly, as licensing of theatres now falls under the optional public entertainment licensing scheme, reference to section 12 of the Theatres Act 1968 (which has been repealed by section 74(3) of the 2015 Act) is not required.

102. The Regulations therefore will be amended to remove the definition of "adult entertainment" in regulation 1(2) and the reference to "adult entertainment "in section 3(2)(a)(iii); the reference at section 3(3)(c) to section 12 of the Theatres Act 1968 will also be removed.