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

Applications

58. 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 an SEV licence prior to the date specified in the resolution and cannot grant any licence until it has considered all applications received prior to that date.

59. Local authorities will therefore wish to consider developing new application forms specifically in respect of SEV licences. Authorities will also have to determine a date 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.

60. 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.

61. We suggest that in considering an application for an 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, women's refuges, 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 as far as is possible^[18]; and
• input from the local Police Scotland human trafficking champion or the Human Trafficking Unit at Gartcosh.

62. It is important to note that an 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. Paragraphs 85-86of this guidance provide additional definitions and further information regarding exemptions.

Consideration

63. 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.

64. 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.

65. Under paragraph 15 of Schedule 2, the local authority can at any time decide to vary a licence on any grounds it thinks fit. The local authority can revoke a licence in line with the provisions set out at paragraph 13 of Schedule 2.

66. A decision not to grant a licence or to revoke a licence may be subject to appeal under paragraph 24 of Schedule 2. 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.

67. Any appeal to a Sheriff in relation to a SEV licence must be made within 28 days of the date of the decision appealed against. However, where the application is refused under paragraph 9(5)(c) or (d) of Schedule 2, the applicant can only challenge the refusal by way of judicial review.

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

Notification

69. Applicants will require to advertise their applications for a licence in a local newspaper specified by the local authority and to display a notice on or near the relevant premises. However, a local authority may dispense with the requirement for an applicant to publish a notice in a newspaper and instead publish notice of the application electronically. The legislation imposes a further duty at paragraph 7(3C) of Schedule 2 requiring each applicant for a licence to operate an 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 an 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

70. In relation to notification of an 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."

71. 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.

72. Local authorities may also wish to consider including on the list local businesses, schools, places of worship and child protection committees, along with anyone else they consider appropriate.

ECHR Issues

73. 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
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law..) and

Article 10 –
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

74. 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.

75. In deciding whether or not to grant a licence for an SEV, local authorities should also bear in mind the rights provided for at the following ECHR Articles

Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4
1. No one shall be held in slavery or servitude.
2 No one shall be required to perform forced or compulsory labour.

Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

76. Further information can be found in the Equality and Human Rights Commission Freedom of Expression Legal Framework guidance^[19] which explains the legal framework which protects freedom of expression and the circumstances in which that freedom may be restricted in order to prevent violence, abuse or discrimination.

77. 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 the competing interests of individuals alongside those of the community.

Fees

78. Paragraph 18 of Schedule 2 provides that a local authority must 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. The R (on the application of Hemming (t/a Simply Pleasure Ltd) and others) (Respondents) v Westminster City Council (Appellant) [2015 and 2017]^[20] rulings may also be of interest.

Enforcement

79. 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.

80. 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

81. 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.

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

83. 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.