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

Statements of policy in relation to sexual entertainment venues

38. 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 an SEV 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

39. 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."

40. 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.

41. 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.

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

43. The statement might include information on the locations where the local authority is likely to consider the operation of SEV to be appropriate or inappropriate. The statement could also be used to indicate how many SEV are considered to be appropriate for the local authority's area or particular localities within its area. The reasons for these policy positions should also be provided.

44. In developing the statement, the local authority may also wish to take account of whether any SEV 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.

45. 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. The local authority should also consider whether reducing the number of SEV in their area or setting the number at zero would create a risk of legal challenge (for example under ECHR or on grounds of reasonableness).

46. 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 will require to demonstrate proportionality by evidencing that the competing interests of SEV operators alongside those of the community had been fairly considered and appropriately balanced.

47. 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 as well as Police Scotland and local businesses (including the operators of any existing SEV).

48. 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 local authority's stated appropriate number of SEV and the policy statement. However it will be for individual local authorities to determine the timeframe for undertaking the reviews required.

Licensing Conditions

49. 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.

50. Conditions are specific requirements that the licence holder must comply with, otherwise the licence could be 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.

51. The local authority can attach standard conditions for all licences granted for SEV, they may also impose individual conditions to licences. 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; and
• the number of persons to be admitted to the premises.

52. The local authority should give careful consideration as to whether the condition proposed is necessary and, with the Brightcrew case in mind, whether it is linked to the regulation of sexual entertainment. The local authority should also consider whether, in all the circumstances, the condition is reasonable and proportionate and therefore not susceptible to challenge.

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

54. Part of the local authority's role is to ensure improved working conditions and a safe environment for the women who work in SEV. The local authority may wish to encourage operators to actively identify potential victims of human trafficking in their recruitment procedures. Where a local authority is made aware of a person who is or appears to be a victim of human trafficking, they have a duty to notify Police Scotland.

55. The Association of Licensed Adult Entertainment Venues in Scotland has a toolkit, A Guide for Employers and Contractors^[17] which is intended to ensure that venues are operated in a fair manner, protecting human rights and that potential victims of human trafficking are identified in the recruitment process.

56. In terms of how a premises licensed as an SEV should be run, in addition to the minimum standards expected of workplaces through health and safety regulations, 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 actively seek to identify performers who may have been the victim of human trafficking;
• employment of security guards;
• use and storage of CCTV;
• provision of hygienic changing and showering 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;
• access to medical checks and sexual health advice to be provided on site;
• the licence holder to ensure performers remain clothed outwith performance area;
• the licence holder to ensure no physical contact between performers and customers;
• the customers to be informed of rules of customer conduct that is deemed acceptable e.g. customers to remain fully clothed at all times and these rules displayed at appropriate locations within the venue licence holder to ensure customers do not seek sexual favours or offer performers payment in return for sexual favours;
• the licence holder to ensure customers do not to offer or ask for any form of contact details from performers;
• the licence holder to ensure customers do not to engage in any unlawful activity within the SEV;
• the licence holder to ensure no photographs or video recordings are taken of the performers.

57. 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 the SEV licence conditions 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.