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

Commencement of licensing of theatres and sexual entertainment venues

93. 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.

94. The provisions at section 74 and the outstanding provisions at section 76 of the 2015 Act are fully commenced by the Air Weapons and Licensing (Scotland) Act 2015 (Commencement No.9 and Transitional Provisions) Order 2019.

95. In commencing the primary legislation, careful consideration was given as to the transitional arrangements for the repeal of existing legislation and the commencement of the new licensing regimes in the 2015 Act. Any necessary consequential changes to existing secondary legislation brought about by the commencement of the 2015 Act provisions was also considered.

96. The transitional arrangements, and the consequential amendments to existing legislation, required as a result of the commencement of sections 74 and 76 of the 2015 Act are detailed below.

Transitional provisions

Section 74 - Theatres

97. 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 amendment to the public entertainment licensing regime will be commenced first and the repeal of the theatre licensing regime will follow at a later date. This will give local authorities sufficient time to consider whether to licence theatres under the 1982 Act and for any resolution under section 9 of the 1982 Act to take effect before the licensing regime under the 1968 Act ends.

98. This means that theatre licences will continue until the repeal of the 1968 Act provisions but, during that timeframe, local authorities will be able to introduce a public entertainment licensing regime for theatres to take effect from the date of repeal. This will enable local authorities which wish to continue licensing theatres to ensure that public entertainment licences will come into force immediately on the repeal of theatre licences, leaving no period in between where theatres are unlicensed.

Section 76 – SEV

99. 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."

100. If a local authority chooses to introduce a licensing regime for SEV they will first require to pass a resolution under section 45B of the 1982 Act. Following a local authority resolution being passed to licence SEV, existing SEV will require to apply for an SEV licence but will be able to continue to trade without a licence until the final determination of that application. The existence of a premises licence under the 2005 Act will be no guarantee that an SEV licence will be granted for those premises – the SEV licensing regime and the alcohol licensing regime regulate two different activities.

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

• Thompson R v Oxford City Council [2013] EWHC 1819 (admin) (28 June 2013)^[22] and
• Thompson R v Oxford City Council & Anor [2014] EWCA Civ 94 (11 February 2014)^[23]

102. 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 alcohol –

The Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007

103. Following a review of secondary legislation we noted that amendments are required to secondary legislation related to alcohol licensing, namely The Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007^[24] (the Regulations). These alcohol regulations include a definition of adult entertainment and a reference to theatre licensing.

104. The Regulations specify conditions which must be imposed by a Licensing Board on the granting of an alcohol 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.

105. 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 alcohol 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.

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

The Premises Licence (Scotland) Regulations 2007

107. Amendments are also required to The Premises Licence (Scotland) Regulations 2007^[25]. Regulation 6 and Schedule 5 of these regulationsprovide for an operating planin respect of licensed premises. Question 5(e) refers to the activity "adult entertainment" which is undefined. This will be amended to refer to "sexual entertainment" as defined at section 45A of the 1982 Act. A reminder will also be included that, where a local authority has decided to licence SEV, unless the entertainment is to take place on no more than four occasions in a twelve month period, an application for a separate SEV licence will have to be made. Whether or not an SEV licence is granted will depend on the individual local authority's consideration of the application in line with the resolution made. If no resolution has been made to licence SEV then no separate licence application will be required.