Provisions for licensing of sexual entertainment venues and changes to licensing of theatres: guidance

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.

Local authorities that do not currently have any sexual entertainment venues may wish to carefully consider whether there would be merit in making a resolution and setting a number (including nil) of such venues for their area to allow them to control the number of sexual entertainment venues operating in their area in the future.

It is important to note that The Licensing (Amendment) (EU Exit) (Scotland) Regulations 2019 ^[1]amend Schedule 2, paragraphs 9(3)(e) and 9(3)(f) of the Civic Government (Scotland) Act 1982 ^[2](the 1982 Act). This change prevents the granting of a licence for a sex shop or sexual entertainment venue to a person who is not resident in the United Kingdom (the UK) or was not resident throughout the 6 month period prior to the application being made. It also prevents the granting of a licence to a body corporate not incorporated in the UK. These provisions come into force on exit day. The previous residency restrictions for granting a licence were to a member state of the EU.

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^[3] (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 26 April 2019.However this is not a mandatory licensing regime and it is 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.

2. Section 76 of the 2015 Act inserts sections 45A, 45B and 45C into Part III of 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 91-92 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 address concerns raised, it is worth emphasising that theatrical performances which are not provided solely or principally for the purpose of sexually stimulating the audience will not be classed as sexual entertainment. As a result, the use of the premises for those performances will not require an SEV licence.

4. Information in respect of both SEV and the theatre provisions is provided at: paragraphs 93-96 on commencement; at paragraphs 97-102 on transitional provisions; and at paragraphs 103-107 on the consequential changes required to The Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007 and The Premises Licence (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^[4]), 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 premises 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 alcohol licensing decisions are the responsibility of the local Licensing Board. These terms are used throughout this guidance and refer to the licensing functions of a local authority. 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 paragraph 4 of Schedule 2 of the 1982 Act will apply in their area and a licence will be required for premises operated as SEV. Premises are classed as an SEV where sexual entertainment is provided before a live audience for the direct or indirect financial benefit of the organiser. Sexual entertainment is any live performance or live display of nudity provided 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 84-90 of this guidance provides additional definitions and further information.

8. The passage of the Air Weapons and Licensing (Scotland) Bill through the Scottish Parliament includes further documentation that may be of interest including the Explanatory Notes and Policy memorandum^[5].

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. A Consultation on Guidance on the Provisions for Licensing of Sexual Entertainment Venues and Changes to Licensing of Theatres^[6] was published on 1 November 2017 with a closing date of 7 February 2018. The responses received were carefully considered and were of assistance in finalising this guidance.

11. 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 does not represent legal advice and any individual or organisation reading this guidance should not treat this guidance as a replacement for independent legal advice. The interpretation of the 1982 Act, as amended by the 2015 Act, is ultimately a matter for the courts.

Background

12. 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^[7] 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.

13. 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.

14. 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.

15. Since then, the Inner House of the Court Of Session in BrightCrew Limited v City of Glasgow Licensing Board ([2011] CSIH 46^[8]) held that the licensing regime in the 2005 Act was limited to the regulation of the sale of alcohol and couldn't extend to matters not linked to 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. This approach would remove concerns around Licensing Boards attempting to use the alcohol licensing regime to regulate matters that go beyond the remit of that regime.

16. A consultation was published in June 2013^[9] (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

17. 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.

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

19. 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.

20. Equally Safe: Scotland's strategy for preventing and eradicating violence against women and girls^[10] was first published in 2014 and updated in 2016 and again in 2018. 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'.

21. Whilst recognising the conflict between this definition and the licensing of SEV, 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 around limiting a legitimate business activity to minimise the risk of legal challenge.

22. 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. Equally Safe: A Delivery Plan for Scotland's strategy to prevent and eradicate violence against women and girls^[11] was published in November 2017. It will help to ensure that the ambitions of the Equally Safe Strategy make a tangible difference.

23. The Trafficking and Exploitation Strategy^[12], 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.

24. In developing the licensing regime, care has therefore been taken to balance the freedom of individuals to engage in legal employment and activities with the right of local authorities to exercise appropriate control and regulation of SEV that operate within their areas.

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

26. A local authority which chooses to licence SEV will have to publish an 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 an SEV licence is granted, licence 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.

27. Local authorities will have to consider the circumstances pertaining in their local area and their statutory obligations (including, but not limited to, their obligations under the EU Services Directive^[13] and the Regulatory Reform (Scotland) Act 2014^[14]). Local authorities will also have to consider the rights SEV operators may have under the European Convention on Human Rights (ECHR) particularly under Article 1, Protocol 1 (peaceful enjoyment of possessions) and Article 10 (freedom of expression) of the Convention. ECHR issues are discussed further at paragraphs 73-77.